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[2017] ZAGPPHC 219
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Phetla and Others v Tendaupenyu NO and Others (A582/2016) [2017] ZAGPPHC 219 (26 April 2017)
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Not
reportable
Not
of interest to other Judges
CASE NO: A582/2016
SIMON
PHETLA
First
Appellant
SOPHIE
MOGOLA
Second
Appellant
OCCUPIERS OF THE REMAINING EXTENT OF
PORTION 28 OF THE FARM WINDHOEK 222
REGISTRATION DIVISION
J. R.
MPUMALANGA
Third
Appellant
and
WESLEY
TENDAUPENJU
N.O.
First
Respondent
ROBERTO
JORGE MENDONGA VELOSA
N.O.
Second
Respondent
EMAKHAZENI
LOCAL
MUNICIPALITY
Third
Respondent
Heard:
8 February 2017
Delivered:
26 April 2017
Coram:
Prinsloo, Makgoka and Molefe JJ Judgment: Makgoka J (unanimous)
Summary
:
Practice and procedure – previous court order placing the
appellants on terms to file their answering affidavits –
appellants failing to comply with the time-frames set out in the
court order – the appellants not barred in perpetuity from
filing their answering affidavits under those circumstances –
court not precluded from receiving such affidavits with a possible
adjournment and a suitable costs order.
Eviction
– s 4(7) of the Prevention of Unlawful Eviction and Illegal
Occupation Act 19 of 1998 enjoins the court to make a
just and
equitable order, irrespective of whether application for eviction is
unopposed. To make a just and equitable order, the
court must
consider all relevant facts.
Jurisdiction
– exclusive jurisdiction of the Land Claims Court – Land
Reform Act and
Extension of Security of Tenure Act 62 of 1997
.
Costs
– attorney-and client – proper approach restated.
ORDER
On
appeal against the judgment of Basson J (sitting as a court of first
instance):
1.
The appeal is
upheld with costs, to be paid by the first and second respondents,
jointly and severally, the one paying the other
to be absolved;
2.
The order of
the court a quo of 2 February 2016 is set aside and the following is
substituted for it:
1.
The
application is postponed sine die;
2.
The
appellants (the respondents in the main application) are ordered to
file their answering affidavits (if any), accompanied by
a
condonation application, if so advised, for the late filing of their
answering affidavits, within 15 days of the date of this
order;
3.
The
respondents (the applicants in the main application) are ordered to
file their replying affidavits to the appellants’
answering
affidavits (if any), together with their answering affidavit to the
condonation application referred to in paragraph
2 (if any), within
10 days of receipt of the affidavits referred to above;
4.
The costs are
reserved for determination by the court hearing the main application.
JUDGMENT
MAKGOKA,
J
[1]
This appeal, with leave of the court a quo, is against the whole of
the order of a single judge of this Division made on 2 February
2016.
In terms of that order, the first, second and third appellants (the
appellants) were evicted from a segment of immovable
property known
as the Remaining Extent of Portion 28 of the Farm Windhoek 222,
Registration Division JS, Mpumalanga (the farm).
The appellants were
ordered to vacate the farm within 30 days of the granting of the
order.
[2]
Ancillary to the order of eviction, the sheriff was directed to evict
the appellants together with their livestock, and to demolish
the
structures erected by the appellants on the farm. The order also
contained an interdict in terms of which the appellants were
prohibited from entering, or placing their livestock on, the farm or
contacting any potential purchaser of the farm. The appellants
were
further ordered to pay the respondents’ costs, jointly and
severally, the one paying the others to be absolved. Such
costs,
including the costs occasioned by a previous postponement of the
matter, were ordered to be paid on a punitive scale of
attorney-and-client.
[3]
Before us, Mr
Slabbert
appeared on behalf the appellants,
while the respondents were represented by Mr
Güldenpfennig
SC.
The
parties
[4]
The first appellant (Mr Phetla) and the second appellant (Ms Mogola)
are said to have erected dwelling structures on the farm.
The third
appellant was cited in the application as „Unknown Unlawful
Occupiers’ of the farm. It is alleged that the
appellants have
all erected dwelling structures on the farm and have their livestock
on the farm. The first and second respondents
(the respondents) are
the trustees of the Makonde Property Trust (the trust), which is the
registered owner of the farm. The third
respondent, the Emakhazeni
Local Municipality (the municipality) was cited as a respondent
because the farm from which the appellants
were evicted, is situated
in the geographic area governed by it, and as such, could in suitable
circumstances be required to provide
the appellants with alternative
accommodation if their eviction results in them being homeless.
[1]
The municipality has never taken part in the litigation, neither in
the court a quo nor in this appeal.
The
background facts
[5]
The background facts are these. The respondents launched an
application in this court on 1 October 2015 seeking an order for
the
eviction of the appellants from the farm, together with ancillary
relief. The application was launched in terms of the Prevention
of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(PIE). To place the appeal in its proper the context, it
is necessary
to briefly state the respondents’ case in that application. The
founding affidavit was deposed to by the first
respondent, in which
the following averments were made: When the trust purchased the farm
in 2006, the late father of Mr Phetla,
Mr MP Phetla (Mr Phetla Snr)
was already residing on the farm, and had a house there. He was
either married to Ms Mogola, the second
respondent, or they were life
partners. He had some livestock and personal belongings on the farm.
Mr Phetla (the first appellant)
was employed on a neighbouring farm
and residing there. During February 2007 there was an agreement
between the first respondent,
Mr Phetla Snr, and Mr Phetla that the
father would continue to live on the farm for the rest of his life.
He died in November 2011.
[6]
After Mr Phetla Snr’s death in November 2011 the first
respondent requested Mr Phetla and Ms Mogola to remove Mr Phetla
Snr’s belongings from the farm, including his livestock. The
request was not adhered to. Instead, more livestock was brought
onto
the farm, allegedly on the authority of Ms Mogola’s sister, who
claimed that the farm belonged to Mr Phetla Snr and
Ms Mogola, and
that she was entitled to lease out grazing rights to various people.
The result was that more animals were grazing
the land. As regards
the father’s house, it had been abandoned since his death and
was derelict. However, since April 2015
there is an unidentified
individual permanently residing on the farm in newly-built
structures. Mr Phetla, Ms Mogola and the unidentified
person have
built structures on the farm.
[7]
During 2015 the trust wished to sell the farm. A prospective
purchaser concluded an agreement of sale with the respondents,
and
delivered the guarantees for the purchase price. Mr Phetla approached
the prospective purchaser and indicated to him that he
had launched a
land claim in respect of the farm. As a result, the prospective
purchaser was not interested in the property anymore
and cancelled
the sale agreement. According to the respondents, Mr Phetla Snr’s
right to live on the farm terminated when
he died, hence the relief
sought against the appellants.
The
litigation history
[8]
On 11 November 2015 an order was granted in this court in terms of s
4(2) read with s 4(5) of PIE giving directions for service
of the
respondents’ application to evict the appellants. It is common
cause that the appellants were all properly served
with the s 4(2)
order on 27 November 2015. The notice of motion in the main
application stated that should the appellants fail
to deliver their
notice of intention to oppose, the application would be heard on 14
December 2015. The appellants only delivered
their notice of
intention to oppose on 11 December 2015, three days from the date of
hearing stated in the notice of motion. As
a result, on 14 December
2015 the matter was by agreement postponed to 1 February 2016. The
appellants were also ordered to file
their answering affidavits (if
any) within 30 days of the granting of the order. Costs were
reserved. Paragraph 3 of the order
reads:
'3. In the event that the first, second and third
respondents [appellants] do not file their respective answering
affidavits within
30 days after [the] date of this order, the
applicants [the respondents] will be entitled to obtain the relief
sought against the
first, second and third respondents [appellants]
on an unopposed basis.’
[9]
A copy of the order referred to above, was transmitted to the
appellants’ attorneys. Contrary to the provisions of the
court
order, the appellants did not deliver their answering affidavits
within the period set out in that order.
The
proceedings on 2 February 2016
[10]
On 1 February 2016 the matter came before Basson J. She stood the
matter down to 2 February 2016, on which occasion counsel
for the
appellants appeared and conveyed to the court that the appellants’
answering affidavits were on hand, and that the
respondents’
counsel had been given copies thereof. Counsel indicated that his
instructions were to seek leave to file the
answering affidavits of
the appellants, which, he said, were „comprehensive’ and
included a challenge to the jurisdiction
of the court to grant the
relief sought by the respondents against the appellants. The
following exchange appears from the transcribed
record of the
proceedings:
‘
COUNSEL
: M’Lady,
my instructions are to file the answering affidavits. They are
comprehensive. In those papers the respondents [the
appellants]
contest the jurisdiction of this court to grant an eviction order.
Those are my instructions, M’Lady.
COURT
: Yes, what about –
what should I make [of] prayer 3 barring them from filling any papers
after 30 days, after the date of
this court order? What is the date
of those affidavits?
COUNSEL
: The affidavits were
deposed to on Friday. I handed a copy to counsel [for] the applicants
[the respondents].
COURT
: Yes, but they are out
of time. On what basis should I then accept them, if one reads the
court order it is very specific. If they
do not file within [the]
allocated time then the matter can proceed on an unopposed basis.’
[11]
After this exchange, counsel for the appellants explained that the
appellants relied on the protection afforded in the Land
Reform Act 3
of 1996 (Labour Tenant Act), alternatively on the Extension of
Security of Tenure Act 62 of 1997 (ESTA) both which
clothe the Land
Claims Court with exclusive jurisdiction. This would result in this
court lacking jurisdiction to grant an eviction
order against the
appellants. Counsel for the respondents also made his submissions,
during which he stated that the application
was unopposed, and that
the application was brought in terms of PIE which was the only basis
on which the application had to be
approached and determined. The
court was invited to disregard the submissions made on behalf of the
respondents and grant the relief
sought in the notice of motion on an
unopposed basis.
[12]
The learned judge expressed a view that the „matter [was]
supposed to proceed.’ The only difficulty, the learned
judge
pointed out, was that „there might be serious constitutional
implications if the point [the jurisdictional challenge]
is not
heard.’ But, said the learned judge, „the fact remains
why the papers were not filed within the time stipulated
by the
court.’ Counsel for the appellants explained that the
appellants are unsophisticated people who did not properly appreciate
the gravity of the matter. It was only during the festive season when
attempts were made to consult with them. That, counsel explained,
was
the reason why the affidavits were late.
[13]
After the court had repeated its reservations about the potential
constitutional implications of the order sought by the respondents,
counsel for the respondents submitted that the appellants had been
afforded sufficient period to file their answering affidavits
and
that they were legally represented when the order was made on 14
December 2015. That order, stated counsel, was in fact, made
by
agreement between the parties’ respective legal
representatives. That submission seems to have dissuaded the learned
judge from the reservations she had expressed earlier. She indicated
that for the reason advanced by the respondents’ counsel,
she
was proceeding to determine the application on an „unopposed
basis’. The learned judge was handed a draft order
making
provision for the eviction of the appellants from the farm, as well
as ancillary relief. I have in para 1 above, set out
the full extent
of the court order. The learned judge did not furnish reasons for the
order at that stage.
The
reasons for the order
[14]
Upon being requested to do so by the appellants’ attorneys, the
learned judge furnished the reasons for the order on
17 February
2016.
[2]
There, two aspects were emphasised: first, that the appellants had
been properly served with an order in terms of s 4(2) of PIE,
in
terms of which the appellants were informed of the respondents’
application to apply for their eviction. Second, that
the appellants’
attorneys had been informed of the court order of 14 December 2015,
requiring the appellants to file their
answering affidavits within 30
days. The thrust of the court a quo’s reasoning is encapsulated
in paras 5, 6 and 7 as follows:
‘
[5] Despite personal service of the order of
Phatudi J [referred to in para 8 above] and despite the fact that the
attorneys on
record for the respondents [the appellants] were advised
of the court order ordering the respondents to serve their opposing
papers,
no papers were filed on behalf of the respondents [the
appellants] opposing the relief sought by the applicants [the
respondents].
[6] In the absence of [the respondents] having filed any
opposing papers [the respondents] were therefore entitled to approach
this
court on an unopposed basis. I should point out that I am in no
doubt that [the appellants] have been represented by attorneys since
the issuing of the order of Phatudi J on 11 November 2015. This is
evident from the fact that it is the very same attorneys …
that are now requesting reasons for the order dated 1 February
evicting [the appellants].
[7] In respect of the order granted on 1 February 2016
this court had regard to the founding affidavit filed on behalf of
the applicants
[the respondents] and the facts set out therein in
support of the order sought by the applicants [the respondents].’
[15]
On 2 March 2016 the appellants filed an application for leave to
appeal, which was granted by the court a quo on 4 May 2016.
[3]
[16]
Before I consider the issues for determination I make the following
observations about the court a quo’s reasons for
its order of 2
February 2016. As is apparent from the above excerpts, no mention is
made in the reasons of the appearance by the
appellants’
counsel at the hearing, and that the appellants’ substantive
answering affidavits were at hand and ready
to be handed up for
perusal by the court. Nor is there any mention of the fact that
counsel had expressly indicated that the jurisdiction
of the court
was being challenged by the appellants in such affidavits. In
essence, the court a quo did not furnish reasons for
its refusal to
accept the appellants’ answering affidavits, nor its decision
to proceed with the matter on an ‘unopposed
basis’ in the
circumstances illustrated in paras 8 – 11 above.
The
issues on appeal
[17]
In his heads of argument, counsel for the respondents submitted that
no appeal lies against the interdict granted against the
appellants,
as well as the costs order. This is so, as, according to counsel,
there are no grounds of appeal in the notice of appeal
or any
submissions in the appellants’ heads of argument on those two.
I do not agree with this submission. The notice of
application for
leave to appeal made it plain that leave to appeal was sought against
the whole of the order of the court. The
application was granted by
the court a quo on that basis, and the notice of appeal followed
suit.
[18]
There are two further glaring difficulties with counsel’s
submission. First, it must be borne in mind that the main defence
put
up by the appellants is the assertion that this court lacks
jurisdiction, on the basis already discussed. If the interdict
stands, and the court later finds the jurisdiction point to have been
well taken, it would mean that the interdict had been incompetently
granted (by a court lacking jurisdiction to do so). Second, both the
interdictory relief and the costs order are ancillary to the
main
order of eviction. If that order is set aside, its ancillary orders
should, accordingly and similarly, be set aside.
[19]
It would result in an incongruous situation were those orders to
stand in the absence of the main order. The interdict would
effectively serve to evict the appellants, despite the fact that the
eviction order would have been set aside. This would have
the effect
of rendering academic, the need to resolve the dispute between the
parties. This is so because the right of the appellants
to occupy the
farm (which the interdict prohibits) is at the very heart of the
dispute between the parties. I therefore do not
agree with the
respondents’ counsel’s formulation of the issues for
determination in this appeal.
[20]
Given the views expressed above, my view of the issues for
determination encompasses the whole of the order of the court a
quo.
Those issues have crisply crystallised as follows:
(a)
whether the
court a quo was correct in declining to accept the appellants’
request to hand in their answering affidavits and
proceeding to
dispose of the application on an unopposed basis;
(b)
If the
question above is answered in the affirmative, whether a punitive
costs order was justified and appropriate.
Court
a quo’s refusal to accept the appellants’ answering
affidavits
[21]
The essence of the submissions on behalf of the appellants is this.
The court a quo, by refusing to have regard to the appellants’
answering affidavits, failed to consider all the relevant
circumstances which a court seized of an eviction application is
enjoined
to consider. This, especially in light of the disclosure by
the appellants’ counsel that the appellants were placing
reliance
on the protection of the Labour Tenants Act, alternatively
of ESTA. Had this been considered and upheld, it would have resulted
in the court transferring the matter to the Land Claims Court for
lack of jurisdiction.
[22]
On the other hand, counsel for the respondents submitted that the
court a quo was correct to determine the matter on an unopposed
basis. The argument is essentially this. The appellants had failed to
adduce factual evidence constituting the jurisdictional facts
to
determine the court’s perceived lack of jurisdiction.
Furthermore, they had failed to adduce evidence under oath that
meet
all the requirements of either a labour tenant as defined in the
Labour Tenant Act or the requirements of an occupier as defined
in
ESTA. Therefore, so was the argument, the court a quo could not on
the evidence before it, consisting of the respondents’
founding
affidavit, determine or conclude that it has no jurisdiction as the
facts set out there pointed that it had jurisdiction
in terms of PIE.
It was also submitted that because neither a request for a
postponement nor an application for condonation was
made on behalf of
the appellants on 2 February 2016, there was no fault in the court a
quo granting the eviction order against
the appellants.
[23]
As to the court’s duty to make a just and equitable order after
considering all the relevant circumstances, the same
answer was
proffered on behalf of the respondents: those considerations come
into play if facts are adduced in evidence on which
a court could
find that an eviction order will result in homelessness. The
appellants having placed no such evidence before the
court a quo, the
application had to be determined solely on the respondents’
version as set out in the founding affidavit.
From that affidavit, so
the argument went, it appeared that the first and second appellants
reside in a township where the sheriff
effected service. Accordingly,
there was no obligation on the court a quo to call for a report from
the municipality.
[24]
In my view, there is no merit to any of the above submissions on
behalf of the respondents, and they are mentioned only to
be
rejected. The premise on which these submissions are made is this:
The court a quo was simply faced with an unopposed application,
and
therefore was entitled to grant the relief sought by the respondents
without reference to anything else. This premise is, in
my view,
self-defeating, simplistic and unhelpful. It fails to take into
account the totality of what transpired on 2 February
2016 before the
court a quo.
[25]
As explained earlier, the appellants were represented in court by
counsel who informed the court that the appellants’
answering
affidavits were at hand, in which, among others, the court’s
jurisdiction was being challenged. Those affidavits
were available
for consideration, but the court refused to accept them. As stated
above, the correctness of that refusal is a key
issue in the appeal.
It is therefore unhelpful to ignore this fact and argue as if the
court was only faced with an ordinary unopposed
application, with no
representation whatsoever on behalf of the appellants. The court a
quo’s reasoning suffers the same
criticism.
[26]
From the transcribed record of the proceedings, it seems clear that
the court a quo was under a misapprehension that the appellants
were
„barred’ from filing their answering affidavits if those
were not filed within the period of 30 days stipulated
in the court
order of 14 December 2015. Despite the learned judge being alive to
the constitutional issues likely to arise from
the relief sought
against the appellants, she however seemingly considered her hands
tied by the court order of 14 December 2015.
[27]
The learned judge misconstrued the import, nature and effect of that
order, as well as the court’s powers. That order
did not
preclude the appellants in perpetuity from filing their answering
affidavits, should they not be filed within the period
stipulated
period. All it did, and nothing more, was to state the obvious:
failure to file the answering affidavits would entitle
the
respondents to enroll the matter on the unopposed motion roll. The
order did not amount to an
ipso facto
bar
in the sense used in action proceedings,
[4]
contrary to what the learned judge seems to have assumed. But even in
an action, it would not be the end of the matter because
a party who
is under bar may apply for extension of time and removal of the
bar.
[5]
What is more, the order could never be construed to constitute
consent by the appellants for their eviction.
[28]
In this regard, counsel for the respondents was at pains to explain
that the appellants had to be held to the time-frames to
which they
agreed when the order of 14 December 2015 was made. Counsel sought
reliance for this submission on
Eke
.
[6]
There, the parties in a summary judgment application had entered into
a settlement agreement which was made an order of court.
The court
order provided, among others, that the appellant (as the defendant in
the main case) admitted liability to pay certain
sums of money to the
respondent (the plaintiff in the main action). Paragraphs 16 of the
court order provided that should the appellant
default in his
obligation, the respondent would be entitled to enroll the summary
judgment application for hearing, claiming the
outstanding balance,
interests and costs. Paragraph 18 of the court order had the
following provision:
‘
18. That the defendant agrees … not to
oppose the said application for summary judgment.’
[29]
The similarity between the present case and
Eke
is that in
both cases, there was a court order, made pursuant to an agreement of
the parties, in which among others, certain time-frames
were agreed
to for certain things to be effected. But there are two important
distinguishing features. First, in
Eke
the appellant had
admitted liability on the merits of the respondent’s claim,
which is not the case here. Second, and most
crucially, the appellant
gave up his right by agreeing not to oppose the re-enrolled
application for summary judgment. This is
not what the appellants in
the present case have done. On the contrary, their agreement to
time-frames for filing their answering
affidavits is a plain and
unequivocal signal of their intention to oppose the respondents’
claim. On these considerations,
it is clear that
Eke
is
distinguishable on the facts, from the present case.
[30]
By misconstruing the nature and effect of the order of 14 December
2015, the court a quo was led to the erroneous conclusion
that it was
precluded from receiving the answering affidavits and considering the
issues raised in them. With regard to the court’s
powers, it is
trite that this court has wide-ranging powers to regulate its own
processes,
[7]
and in the interest of justice, may condone any default on the part
of a litigant. By refusing to accept the affidavits, the court
a quo
deprived itself of the opportunity to form a view whether any
sustainable defence was being proffered by the appellants in
those
affidavits and, in particular, whether a consideration of the
relevant circumstances rendered the eviction of the appellants
just
and equitable. For it is only when it shall have considered the
appellants’ version that such a conclusion could made.
This,
especially in the light of the express submissions by the appellants’
counsel regarding the challenge to the court’s
jurisdiction.
[31]
The acceptance and consideration of the appellants’ answering
affidavits could well have resulted in the matter having
to be
postponed, obviously to the prejudice of the respondents. On the
other hand, consideration would have been given to the prejudice
likely to be suffered by the appellants as a result of them being
evicted. The type of prejudice likely to be suffered by the
respondents under those circumstances is one which could easily be
ameliorated by a suitable costs order against the appellants,
whereas
the one likely to be suffered by the appellants would have been
irreversible and substantive in its reach.
[32]
As correctly submitted on behalf of the appellants, the court’s
obligation to consider all the relevant circumstances
was not
obviated by the contents of the court order dated 14 December 2015.
As explained by the full court of this Division in
Naidoo
v FTX Investments
:
[8]
‘
13.
In the present instance the court a quo did not deal with all the
relevant circumstances as [they were
]
not
part of the papers. It is however incumbent on a court to act
pro-actively in these matters to ensure that all the relevant
facts
are available and considered before evicting occupants. It must be
even more so in a case as the present where occupiers
of land have
been occupying the land for more than three decades and the issue of
alternative accommodation was not ventilated
or examined in court by
either of the parties or the court.’
[33]
What is more, the submission on behalf of the respondents that
because the appellants’ version was not on oath before
the
court, it entitled the court to evict the appellants without more,
was firmly rejected by the Constitutional Court in
Pitje
.
[9]
There, as in the present case, a respondent facing eviction attempted
in vain to hand up a rejoinder affidavit in which he sought
to place
his personal circumstances before the court which would have
demonstrated that the eviction would result in him being
homeless.
Dealing with the High Court’s refusal to accept the rejoinder,
the Constitutional Court made the following pertinent
observations:
‘
[18] Mr Pitje unsuccessfully attempted to inform
the High Court, in his application for rejoinder, that he does not
have suitable
alternative accommodation. The refusal for rejoinder
means that the High Court did not consider all the relevant
circumstances
of Mr Pitje, including his disability and a possibility
that the eviction could render him homeless. The High Court erred in
not
doing so. It should have allowed the rejoinder. The order I make
reflects this.
[19] Moreover, courts cannot necessarily restrict
themselves to the passive application of PIE. Even if there had been
no rejoinder
application, courts are obliged to probe and investigate
the surrounding circumstances when an eviction from a home is sought.
This is particularly true when the prospective evictee is vulnerable.
These considerations would have enabled the High Court to
apply the
requirements of PIE justly.
[20] Consequently, the Shibambos were incorrect to
contend that, because Mr Pitje did not disclose the information about
his risk
of homelessness under oath, the High Court could not
consider (i) his alternative accommodation options, (ii) his health
or disability
or (iii) the situation of other occupants.’
(Footnote omitted)
[34]
If the respondents’ submissions – adopted by the court a
quo - are correct, it would mean that a court is constrained
to grant
a patently incompetent order (for instance where it lacks
jurisdiction) merely because the other party has not complied
with a
previous order, despite the jurisdiction issue being raised from the
bar. A challenge to its jurisdiction should not be
lightly
disregarded by a court, irrespective of how and when it is raised,
because it goes to the heart of the court’s authority
to grant
the relief sought. If the court lacks jurisdiction, it is irrelevant
that the matter before it is unopposed. The relief
which it grants
will remain a nullity.
[35]
In this regard, it is necessary to have regard to s 13 (1A) of the
Labour Tenant Act, on which the appellants’ jurisdictional
challenge is based. It provides:
‘
With the exception of issues concerning the
definition of ‘occupier’ in section 1(1) of the extension
of Security of
Tenure Act, 1997 (Act No 62 of 1997), if an issue
arises in a case in a Magistrate’s court or a High Court which
requires
that court to interpret or apply this Act and –
(a) no oral evidence has been led, such court shall
transfer the case to the Court [Land Claims Court] and no further
steps shall
be taken in the case in such court.’
[36]
The peremptory nature of the provisions of s 13(1A) is unequivocal.
Once that defence is raised in court, the Magistrate Court
or the
High Court has no residual discretion but to refer the matter to the
Land Claims Court. It is now settled that if a landowner
applies in
the High Court for the permanent eviction of a person on the basis
that the person is an unlawful occupier, and the
person raises the
defence that he or she is a labour tenant and entitled to protection
under the Labour Tenants Act, the matter
must be transferred to the
Land Claims Court. See
Makhaza v FCL Farming CC and another
(LCC
59/2009)
[2010] ZALCC 20
(7 June 2010) para 16.
[37]
It is on the above considerations that I conclude that the appeal has
to succeed. The general rule is that the costs follow
the result. The
appellants have been successful and there is no reason to deviate
from the general rule. The appeal succeeds for
all of the reasons set
out above, but mainly because the court a quo erred, at procedural
level, in refusing to accept the appellants’
answering
affidavits and by failing to consider the jurisdictional challenge
conveyed to it. Even absent the above, the court a
quo failed to have
regard to the provisions of s 4(7) of PIE, as it was obliged to do.
In
Machele
,
[10]
the Constitutional Court made it clear that the application of PIE is
not discretionary. The Court aptly explained:
‘
[15] The application of PIE is not discretionary.
Courts must consider PIE in eviction cases. PIE was enacted . . . to
ensure fairness
in and legitimacy of eviction proceedings and to set
out factors to be taken into account by a court when considering the
grant
of an eviction order. Given that evictions naturally entail
conflicting constitutional rights, these factors are of great
assistance
to courts in reaching constitutionally appropriate
decisions.’
[38]
Having concluded that the appeal should succeed, what remains to be
considered is the proper order with regard to the further
determination of the matter. Counsel for the appellants, as in the
court a quo, sought, in the main, an order transferring the
matter to
the Land Claims Court. We have decided against that route because,
whether the provisions of s 13(1A) of the Labour Tenant
Act would
find application in the present case (and make the transfer of the
matter to the Land Claims Court obligatory) is not
a matter which can
be decided without having regard to the contents of the appellants’
answering affidavits. The best-placed
forum for that determination is
the opposed motion court. This is where the court a quo should have
directed the proceedings to.
Punitive
costs order in the court a quo
[39]
The appeal being upheld renders it unnecessary to consider the issue
of costs made ancillary to the order of 2 February 2016.
The main
order being set aside, that costs order, being ancillary thereto,
falls away consequentially. However, I feel constrained
to make a few
remarks about it. It would be recalled that the court a quo ordered
the appellants to pay the costs on an attorney-and-
client scale. The
ordinary rule is that the successful party is awarded costs as
between party-and- party.
[11]
[40]
An attorney-and-client costs order is an extra-ordinary one which
should not be easily resorted to, and only when by reason
of special
considerations, arising either from the circumstances which gave rise
to the action or from the conduct of a party,
should a court in a
particular case deem it just, to ensure that the other party is not
out of pocket in respect of the expense
caused to it by the
litigation.
[12]
As such, an award of attorney-and-client costs will not be granted
lightly, as the court looks upon such orders with disfavour
and is
loath to penalize a party who has exercised a right to obtain a
judicial decision on any complaint such party may have.
[13]
[41]
On an overview of the authorities, the grounds on which the court may
order a party to pay an opponent’s attorney-and-client
costs,
are confined to special circumstances indeed, for example where a
party has been guilty of dishonesty or fraud or had vexatious,
reckless and malicious, or frivolous motive or committed grave
misconduct either in the transaction under enquiry or in the conduct
of the case. See a comprehensive, but not exhaustive, list of
instances where the court may order attorney-and-client costs, in
Herbstein & Van Winsen
The Civil Practice of the High Courts
of South Africa
(5ed) at pp 971-973.
[42]
In the present case, I can discern none of the circumstances referred
to above, justifying a punitive costs order. It is instructive
that
in its reasons for the order it made on 2 February 2016, the court a
quo did not state what considerations weighed on it to
award a
punitive costs order. In the absence of reasons, the inescapable
conclusion is that the court a quo exercised its discretion
capriciously and upon a wrong principle, therefore misdirecting
itself in the process.
Final
remarks
[43]
Before I conclude, I make an observation as to how the appellants
have been referred to in the proceedings. The second appellant
was
referred to as „a concubine’ of the late Mr Phetla Snr.
This is undignified and downright demeaning. The same goes
for the
reference of the appellants in the respondents’ submissions in
the court a quo as „primitive’. This is
decidedly
unacceptable, especially in a matter involving an emotive issue like
land ownership and possession, where race and class
interact. As the
Constitutional Court explained in Port Elizabeth Municipality:
[14]
‘
[15] The blatant disregard manifested by racist
statutes for property rights in the past makes it all the more
important that property
rights be fully respected in the new
dispensation, both by the state and by private persons. Yet such
rights have to be understood
in the context of the need for the
orderly opening-up or restoration of secure property rights for those
denied access to or deprived
of them in the past.’
[44]
The insensitivities do not end there. In the notice of motion the
third appellant has been cited as ‘The Unknown Unlawful
Occupiers of the Remaining Extent of Portion 28 of the Farm Windhoek
222 JS, Mpumalanga’. This was repeated in the judgment
of the
court a quo when the reasons were furnished. That form of citation
has been deprecated by the Constitutional Court in
Golden
Thread
,
[15]
where Jacoob J expressed himself thus:
‘
[4] This description of human beings is less than
satisfactory and cannot pass without comment. It detracts from the
humanity of
the occupiers, is emotive and judgmental and comes close
to criminalising the occupiers. This form of citation should not be
resorted
to. A more neutral appellation like ‘occupiers’
might well be more appropriate’.
[45]
In sum, the appeal must be upheld with costs. The matter has to be
referred to the opposed motion court which will determine
whether
this court has jurisdiction. Having made that determination, the
proper forum would be seized of the substantive issues
between the
parties.
[46]
In the result the following order is made:
1.
The appeal is
upheld with costs, to be paid by the first and second respondents,
jointly and severally, the one paying the other
to be absolved;
2.
The order of
the court a quo of 2 February 2016 is set aside and the following is
substituted for it:
1.
The
application is postponed sine die;
2.
The
appellants (the respondents in the main application) are ordered to
file their answering affidavits, accompanied by a condonation
application, if so advised, for the late filing of their answering
affidavits, within 15 days of the date of this order;
3.
The
respondents (the applicants in the main application) are ordered to
file their replying affidavits to the appellants’
answering
affidavits (if any), together with their answering affidavit to the
condonation application referred to in paragraph
2 (if any), within
10 days of receipt of the affidavits referred to above;
4.
The costs are
reserved for determination by the court hearing the main application.
______________________
TM
Makgoka
Judge
of the High Court
I agree
_____________________
WRC
Prinsloo
Judge
of the High Court
I agree
_____________________
D
Molefe
Judge
of the High Court
APPEARANCES:
For the
Appellants: JP Slabbert
Instructed
by:
Ledwaba
Mazwai, Pretoria
For
Respondents: S
Güldenpfennig SC
Instructed
by:
Van Dyk
Theron Inc., Pretoria
[1]
This is on the authority of City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd
2012 (2) SA
104
(CC) paras 44 and 45.
[2]
Tendaupenyu NO and Another v Phetla and Others (77903/2015) [2016]
ZAGPPHC 80 (17 February 2016).
[3]
Phetla and Others v Tendaupenyu NO and Others (77903/2015) [2016]
ZAGPPHC 310 (4 May 2016).
[4]
See rule 26 of the Uniform Rules of Court.
[5]
See rule 27(1) of the Uniform Rules of Court.
[6]
Eke v Parsons
2015 (11) BCLR 1319
;
2016 (3) SA 37
CC.
[7]
Section 173 of the Constitution provides:
‘The
Constitutional Court, the Supreme Court of Appeal and the High Court
of South Africa each has the inherent power to
protect and regulate
their own process, and to develop the common law, taking into
account the interest of justice’.
[8]
Naidoo v FTX Investments (Pty) Ltd and Another (Unreported case
number 74329/2014).
[9]
Pitje v Shibambo and others 2016 (4) BCLR 460 (CC).
[10]
See Machele and Others v Mailula and Others [2009] ZACC 7; 2010 (2)
SA 257 (CC); 2009 (8) BCLR 767 (CC).
[11]
Valkin v Daggafontein Mines Ltd
1960 (2) SA 507
(W) at 516; AA Alloy
Foundry (Pty) v Titaco Projects (Pty) Ltd
2000 (2) SA 639
para 20.
[12]
Nel v Waterberg Landbouwers Ko-operatiewe Vereneging
1946 AD 597
AT
607; and Waar v Louw
1977 (3) SA 297(O)
at 303.
[13]
Van Wyk v Millington
1948 (1) SA 1205
(C) at 1215; Moosa v Lalloo
1957 (4) SA 207
(D); De Goede v Venter
1959 (3) SA 959
(O) at 963;
LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town
Municipality v LF Boshoff Investments (Pty)
Ltd
1969 (2) SA 256
(C)
at 272G-H.
[14]
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2004 (12) BCLR 1268
;
2005 (1) SA 217
; (CC).
[15]
Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden
Thread Ltd and others
2012 (2) SA 337
;
2012 (4) BCLR 372
(CC).