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[2017] ZAKZDHC 31
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Mngomezulu v eThekwini Metropolitan Municipality and Another (12503/2014) [2017] ZAKZDHC 31 (30 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 12503/2014
In the matter between:
NKOSINATHI
WISEMAN
MNGOMEZULU
PLAINTIFF
and
ETHEKWINI METROPOLITAN
MUNICIPALITY
FIRST
DEFENDANT
THE MINSITER OF SAFETY
& SECURITY
SECOND
DEFENDANT
Date of Hearing : 31 July
2017 – 4 August 2017
Date
of Judgment : 30 August 2017
ORDER
The following order is
granted:
(1)
The claim against Ethekwini Metropolitan
Municipality, the first defendant to compensate the plaintiff for
damages for shooting
him on 21 September 2013 is dismissed with
costs.
(2)
The claim against Ethekwini to compensate
the plaintiff for damages for allegedly demolishing his property is
dismissed with costs.
(3)
The Minister of Safety and Security, the
second defendant is liable to compensate the plaintiff for arresting
and detaining him
unlawfully on 21 September 2013 until his release
from custody in November 2013 with costs.
JUDGMENT
D.
Pillay J:
Introduction
‘
[T]he
very integrity of the judicial process in our young democracy –
and of our country’s apex Court – is at
stake.
’
[1]
[2]
This judgment is a sequel to
Zulu
and others
v
Ethekwini
Municipality
and
Others
in which Van Der Westhuizen J
expressed the concern above. He was referring to the conduct of
employees of Ethekwini Municipality,
which was the first respondent
in that application and is the first defendant in this action.
However, his concern is also valid
in the context of a bigger
dilemma. When conflicts reach such a state of impasse that
rationality and reasonableness are jettisoned
in favour of self-help
in the form of intimidation and violence, when officers of the court
are prevented from carrying out their
duties, then his concern
ramifies beyond the immediacy of the litigation. Courts cannot
function optimally under such conditions.
And if decisions of the
court are compromised as a result, the very integrity of the court
will follow suit.
[3]
Furthermore,
the framework of adversarial litigation limits the scope of the
court’s interventions to the issues in dispute
as pleaded,
proved and argued. One way or the other the court will resolve the
disputes as is its constitutional duty to do;
[2]
but solving the causes of conflicts calls for processes and remedies
falling beyond the reach of its institutional capacity,
notwithstanding
its wide powers to grant any order that is just and
equitable.
[3]
[4]
In
this instance one of the real causes of the conflict was the demand
for social housing. Getting to the root of this or any of
the other
causes that suggested themselves in this action is out of the
question. For, framed as this case is for payment of damages
for
demolition of a shack and unlawful assault, arrest and detention of
the plaintiff, it is merely a proxy for the struggle for
social
housing. So unless the parties engaged meaningfully and consented to
redefining the terms of reference for the court’s
adjudication,
the court had no opportunity to ‘scratch the surface to get to
the real substance below’ in order to
determine precisely what
is a ‘just and equitable’ remedy.
[4]
Background
[5]
On 21 September 2013 Gavin Michael Le
Cordier lead his team from the Land Invasion Unit (LIU) of Ethekwini
into Cato Crest, a suburb
west of Durban. They planned to demolish
unoccupied built and partially built shacks in order to prevent
illegal occupation of
land. As the team approached the shacks the
plaintiff Nkhosinathi Wiseman Mngomezulu protested loudly. Members of
the LIU chased
him away. They followed him to ensure that he did not
tamper with their vehicles. The plaintiff approached them. An
altercation
occurred between Mr Le Cordier and the plaintiff. Mr Le
Cordier shot the plaintiff four times in his abdomen; the plaintiff
stabbed
Mr Le Cordier once in his abdomen.
[6]
Mr Le Cordier received treatment at St
Augustine’s Hospital. He was released the following day. The
plaintiff underwent surgery
and treatment for serious injuries at
King Edward VIII Hospital. His legs were cuffed to his bed. Members
of the South African
Police Services (SAPS), the second defendant,
were posted at his bedside to guard him. He was arrested. He remained
in hospital
until his discharge on 22 November 2013. On discharge
from hospital the SAPS took him into custody at Cato Manor Police
Station.
The following day he was released from the Magistrates’
Court without appearing before a magistrate. On 28 November 2014 the
Senior Public Prosecutor (SPP) issued a
nolle
prosequi
discharging the plaintiff from
prosecution.
[7]
As a result of these events the plaintiff
instituted an action for damages for the following:
a)
Employees of Ethekwini wrongfully and
unlawfully assaulting him.
b)
Employees of Ethekwini unlawfully
demolishing the his home.
c)
Members of the SAPS unlawfully arresting
and detaining him without a warrant and without reasonable grounds to
suspect that he assaulted
Mr Le Cordier unlawfully.
d)
Members of the SAPS laying a false charge
of assault against him (withdrawn during closing argument).
Onus and the duty to
begin
[8]
It
was common cause that the defendants bore the onus of proving that
their actions were lawful.
[5]
Accordingly the defendants agreed to start.
Ethekwini’s Case
[9]
The LIU had discovered that shacks were
being constructed on vacant land in Cato Crest. They informed the
owner of the land, which
at the time was the Province. Consequently
the Member of the Executive Council for Human Settlements and Public
Works (MEC) for
the Province of KwaZulu-Natal obtained an interdict
against Ethekwini and the Minister of Police on 28 March 2013. This
‘March
order’ authorised Ethekwini and the SAPS to take
all reasonable and necessary steps to prevent any persons from
invading,
occupying or constructing structures on certain properties
including Lots 17-19 of Erf 960 of Cato Manor. It also authorised the
respondents to remove materials and demolish any structures on the
properties on the list attached to the order. ‘Any person’
was interdicted and restrained from invading, occupying or
constructing structures on the properties. Notice of the order had to
be given by placing a copy with a translation in isiZulu in prominent
places on each of the properties and by publishing it with
a
translation in
The Ilanga
for three consecutive days.
[10]
The
March order had the attention of the Constitutional Court in
Zulu
and others
v
Ethekwini
Municipality
and
Others
.
A minority of two opined that the March order should be set aside
because it was unconstitutional and would cause irreparable
harm.
[6]
The majority reasoned that the issue on appeal was the refusal
by the High Court to allow the appellants to join the proceedings
granting the March order; the appellants should anticipate the return
day to seek the discharge of the March order; the demolitions
appeared to have stopped; the parties in three related cases in the
High Court had to have an opportunity to finalise them.
[7]
[11]
The March order remained in force until 20
August 2015 when it was discharged. In discharging it the High Court
reminded that the
general rule is that court orders must be obeyed
irrespective of whether they have been wrongly granted. Consequently
in this action
Mr Le Cordier persisted that in carrying out the March
order they meticulously ensured that the only shacks demolished were
those
that were unoccupied. Typically the shack owners and occupiers
resisted the demolitions by protesting, demonstrating and rebuilding
their shacks immediately after they were demolished. Mr Le Cordier
denied knowing about the High Court orders issued from August
2013 to
restrain the evictions and demolitions.
[12]
Turning to the assaults, when they
encountered the plaintiff Mr Le Cordier was in front of Mr Kippen.
The plaintiff advanced
aggressively towards them ignoring Mr Le
Cordier’s instruction to stop. He used a plastic lid as a
shield and carried a spear-like
rod. Mr Le Cordier fired a paintball
marker at him to stop him. A paintball marker releases a pepper spray
on contact with its
target. Undeterred the plaintiff continued to
advance towards Mr Le Cordier. Mr Le Cordier called out for the
second time. But
the plaintiff failed to stop or retreat. Then Mr Le
Cordier handed the paintball marker to Mr Kippen and drew his 9mm
pistol from
his holster. This too did not stop the plaintiff. Mr Le
Cordier fired four shots into the ground in front of the plaintiff’s
feet. Still the plaintiff advanced. As Mr Le Cordier stepped
backwards he tripped and fell. The plaintiff stabbed him in his lower
abdomen with the rod. As the plaintiff motioned to stab him again Mr
Le Cordier fired shots into the plaintiff’s abdomen.
The
plaintiff retreated.
[13]
Mr Le Cordier called off the demolition
operation to tend to his injuries. Mr Kippen and Terence Goulding
corroborated Mr Le Cordier
in material respects.
The case for SAPS
[14]
Constable Mondli Gabisa received a report
on the radio. He also attended to a complaint from a woman and a man
who introduced himself
as Aron Mzimela, the cousin of the plaintiff.
They reported that the plaintiff had been shot. Constable Gabisa
attended on Mr Le
Cordier in hospital and established that he had
been stabbed. He proceeded to the Cato Crest settlement. Mr Mzimela
pointed out
the scene where the plaintiff had been shot. At King
Edward Hospital the medical staff refused to allow him to see the
plaintiff
who was in a critical condition. He took a statement from
Mr Mzimela. In his statement recording his involvement with the case
on 21 September 2013, Constable Gabisa referred to Mr Le Cordier as
the victim and the plaintiff as the patient, not a suspect.
One
cannot infer from this that he was necessarily biased against the
plaintiff as counsel for the plaintiff suggested.
[15]
Warrant Officer Brian Poliah was the
Investigating Officer from 3 October 2013. His senior, Captain
Khawula, instructed him to take
over the investigation. Initially the
docket was for assault with intention to commit grievous bodily harm.
But this changed to
attempted murder. He did not see the plaintiff’s
legs cuffed to his hospital bed. Constable Phumlani Innocent Mpanza
opened
a docket after visiting Mr Le Cordier in hospital. Constable
Christopher Arthur Sibiya arrested the plaintiff on instructions from
Captain Khawula at the hospital on 21 September 2013. Captain Khawula
failed to testify.
The plaintiff’s
case
[16]
Sibusiso Zikode is the president of the
Abahlali Base Mjondolo Movement of South Africa (The Movement). He
testified about the LIU’S
harassment of the occupiers of the
informal settlement and the latter’s resistance. However, his
description of the conduct
of members of the LIU was not put to the
witnesses for Ethekwini. Each time shacks were demolished shack
owners reconstructed them.
He did not witness the events of 21
September 2013.
[17]
He was in attendance in court when the
Movement and 30 other applicants who were its members obtained an
undertaking from Ethekwini
and the MEC that their employees would
refrain from evicting the 30 applicants and demolishing the informal
structures remaining
at Cato Crest informal settlement. That
undertaking was recorded in the order of court of 22 August 2013.
Costs were reserved.
[18]
On 2 September 2013 the Movement and the 30
applicants returned to court and obtained an interdict against
Ethekwini and the MEC.
This time not only did the court restrain
Ethekwini from evicting the applicants and demolishing and disposing
of their informal
housing structures; it also ordered Ethekwini to
construct temporary habitable dwellings to afford shelter, privacy
and amenities
equivalent to those that were destroyed at the sites
where the informal housing had been demolished. Furthermore the
demolitions
executed on 13 August and 1 and 2 September 2013 were
declared unlawful. Ethekwini and the MEC were ordered to pay the
costs of
the application on the scale as between attorney and client.
[19]
On 6 September 2013 the applicants returned
to court for the third time and obtained an order in which The Head:
Land Invasion Unit
(i.e. Mr Le Cordier), the Municipal Manager of
Ethekwini and the Station Commander of SAPS Cato Manor who were
joined as second,
third and fourth respondents were found to be in
contempt of the order of 2 September 2013. The court ordered them to
be committed
to a term of imprisonment of 30 days, but suspended that
order for one year on condition that they complied with it forthwith.
Mr Le Cordier and the Municipal Manager in the contempt application
were ordered to pay the costs on the scale as between attorney
and
client.
[20]
Eventually on 12 September 2013 the court
ordered the legal representatives of the Movement and the respondents
to meet at the Cato
Crest settlement on 17 September 2013 to identify
and mark the informal structures of the 30 applicants. The interdict
restraining
the demolition and the disposal of the informal
structures of the 30 applicants were reinforced. Costs were reserved.
[21]
On the appointed day the legal
representatives assembled as directed. A councillor arrived with a
group of people to harass the
legal representatives. As a result,
marking the structures of the 30 applicants could not be executed. Mr
Zikode also testified
that people who spoke isiXhosa and who were not
members of the African National Congress, the governing political
party, were not
allocated sites. This crucial evidence was not put to
witnesses for Ethekwini or the SAPS. Consequently the respondents had
no
opportunity to admit or deny these allegations or to account for
what steps they took against those harassing the occupiers of the
informal settlements.
[22]
The plaintiff testified that on 20
September 2013 Mr Le Cordier and the LIU arrived at Cato Crest. He
presented Mr Le Cordier with
copies of the court orders interdicting
the eviction of occupiers and the demolition of shacks. Aron Mzimela
accompanied him. Mr
Le Cordier ignored the court orders. The shacks
were demolished. The following day the residents rebuilt the shacks.
Whilst they
were doing so the LIU returned. The plaintiff accompanied
by a person known as Sicelo and Mr Mzimela approached Mr Le Cordier.
He was about seven metres away when Mr Le Cordier fired his first
shot with rubber bullets. Mr Le Cordier placed this firearm down,
pointed his handgun and shot the plaintiff. Both his companions
retreated. Incensed by being shot and having no home he continued
to
advance towards Mr Le Cordier. As Mr Le Cordier retreated he tripped.
His firearm fell. Whilst he lay on his back on the ground
the
plaintiff stabbed him with the iron rod before retreating. By then
the plaintiff was weak. Mr Mzimela and Sicelo helped to
find
transport for him to hospital. He also suffered from the tear gas the
LIU used to disperse people.
[23]
When he regained consciousness he found
that his feet were tethered to the hospital bed. Two policemen were
guarding him. He was
released from the hospital and taken to Cato
Manor Police Station. He was deprived of his medication, which he had
to take thrice
a day. Whilst waiting at the magistrate’s court
other inmates harassed and searched him. Considering that his wounds
were
still bandaged these searches were particularly unpleasant. On
his return from the magistrates’ court Mr Zikode took him to
the Dalton Hostel where the plaintiff’s brother resided.
Did the members of the
LIU demolish the plaintiff’s shack?
[24]
The plaintiff was cross-examined at length
to establish the position of his shack, which he alleged was in the
woods. His explanation
for citing his address as CC3421 and room 190
in his hospital records and statement of complaint to the police was
that these were
addresses he used so that if there was any mail for
him or anyone looking for him they could find him through the
residents at
those addresses. However, arriving at this simple
explanation was a long and winding road with many deviations. As a
result the
court was left in some doubt about the truthfulness of his
final version.
[25]
Whilst the court accepts that some
occupants of informal settlements have no addresses and they rely on
addresses in formal settlements
nearby, the plaintiff could have
given this evidence simply, clearly and concisely. The court
acknowledges that he was unsophisticated
with no formal education.
However, he had the services of an interpreter and the evidence
sought was a straightforward statement
of fact. Why was he evasive
then about his address?
[26]
The location of the plaintiff’s shack
was crucial to determine whether it was one of those that the LIU
demolished. If it
were he would have been entitled to compensation.
According to witnesses for Ethekwini, the demolitions were confined
in terms
of the March order to Lots 17, 18 and 19 of Erf 960 Cato
Crest. Even then the demolitions were restricted to unoccupied
complete
and incomplete structures. In contrast, the plaintiff
persisted that his shack was in the forest in an area not prone to
demolition
under the March order. To resolve this dispute of fact the
court directed the parties to conduct an
in
loco
inspection. Disconcertingly, the
defendants and their legal representatives were harassed and
intimidated from conducting the inspection.
On advice from the
security personal they left the informal settlement without
accomplishing the task.
[27]
Remarkably the protestors allowed the
plaintiff to continue with his legal team to point out places where
his shack allegedly was.
From this it is fair to assume that they
were supportive of him and hostile to the respondents. The
in
loco
inspection could have added
evidential value. However, the obstruction of the respondents and
their legal representatives from
carrying out their duties not only
deprives the court of important evidence but also weakens the
evidential value of the inspection
for the plaintiff.
[28]
Following the
in
loco
inspection the plaintiff got an
agreement from Ethekwini that the plaintiff had pointed out four
spots where he alleged the shooting
had occurred and where three
shacks including his own were demolished on 21 September 2013.
Ethekwini also agreed that these spots
were marked on Google Maps,
which was printed and handed in as Bundle E.
[29]
However, Ethekwini’s witnesses denied
that the plaintiff’s shack was at the points marked in Bundle E
because the points
fell beyond Lots 17, 18 and 19 of Erf 960 Cato
Crest. Bundle E’s evidentiary value is no higher than being a
true printout
of the electronic map depicting areas pointed out by
the plaintiff. It did not amount to an admission that the plaintiff’s
shack was at the place that he had pointed to. For purposes of
cross-examination the plaintiff’s inability to read maps and
to
point out his location on it in court weakened its usefulness
further. His illiteracy was all the more reason for conducting
an
inspection.
[30]
Thus the position remained unchanged after
the inspection with Ethekwini maintaining that the shacks it
demolished were unoccupied
and outside the woods whereas the
plaintiff persisted that shacks including his own were inside the
woods.
[31]
The evidence for Ethekwini was clear,
consistent and corroborated. As for the plaintiff he was a single
witness to the events of
21 September 2013. He was not only evasive
about his address but untruthful about whether he was in court when
Mr Le Cordier testified.
Initially he said that he was sitting
outside; subsequently and after much probing he acknowledged that he
was in court on the
first and second days of the trial but vacated
the court when his attorney advised him to do so. He also
disingenuously denied
that it was he who vacated the court instantly
after the court asked whether the plaintiff and his witnesses were
inside court
when Mr Zikode was testifying.
[32]
In his statement of complaint to the police
he denied ever stabbing any security personnel. This conflicted with
his evidence. His
response to differences in his evidence and in his
statement to the police was that the police officer who took his
statement sided
with the Ethekwini officials and was unsupportive of
him. Assuming this was true and accepting further that statements of
witnesses
taken by the police are not always accurate or complete,
the recording that he never stabbed any security is an unequivocal
untruthful
statement. He did not deny making it. Allowances can be
made for inaccuracies and misunderstandings in statements the police
prepare
but manifest dishonesty in the circumstances is inexcusable.
Resorting to the right to silence he could have declined to make a
statement rather than make a false one.
[33]
Surprisingly, as a person who was so
incensed by the demolition of his neighbours’ properties that
he rose to defend them,
he was unable to get a single neighbour to
corroborate his evidence about the location of his shack, the events
of the previous
day, the demolitions of his neighbours’
properties and the assaults.
[34]
Accordingly I find that the plaintiff was
not an honest, reliable witness. His vacillation about the addresses
he used creates doubt
about whether he had a shack at all.
Consequently, I find that the plaintiff has failed to prove that he
had a shack in the woods
or anywhere in the Cato Crest informal
settlement.
Claim 1: Damages for
Unlawful Assault
[35]
The
March order and the demolitions it authorised form the backdrop of
the assault. In discharging the March order the High
Court
agreed with Ethekwini that it was obliged as an organ of State to
comply with it. However, the Constitutional Court had been
unanimous
in finding that the demolitions of structures to prevent land
invasions were acts of eviction and that Ethekwini’s
‘contradictory positions’ in executing the demolitions on
the strength of the March order after disavowing it, was
‘totally
unacceptable’.
[8]
Despite
the Constitutional Court’s scathing criticism of Ethekwini, in
this case its witnesses persisted in testifying to
justify the
demolitions again on the strength of the March Order.
[36]
Ethekwini would not have known what the
Constitutional Court’s opinion would be when it carried out
these demolitions in September
2013, but it had to know it by the
time this action commenced in October 2014, as the Court had handed
down its judgment in June
2014. On Mr Le Cordier’s evidence
alone Ethekwini was attempting once again to pass off the evictions
as demolitions only
despite the finding of the Constitutional Court
to the contrary in
Zulu and Others v
eThekwini Municipality and Others
.
[37]
Additionally the Movement and 30 occupiers
of the settlement secured subsequent orders that apply to the whole
of Cato Crest informal
settlement without distinguishing between
marked and the unmarked plots as the March order did and interdicting
both evictions
and demolitions. Mr Le Cordier denied knowing about
the orders granted from 22 August 2013 onwards. His denial is
surprising considering
that as Head of the LIU he is the second
respondent in the September orders. Furthermore he was aware of the
order directing the
parties to meet to mark the informal structures.
He confirmed that the exercise was not undertaken. If Mr Le Cordier
had not been
notified of the court orders of 22 August and 2
September 2013 that were preludes to the contempt order of 6
September against
him, then it is a failing on the part of Ethekwini
not to have alerted its officials to what was effectively a ban, an
absolute
prohibition on the demolitions and evictions in the entire
informal settlement including the woods and Lots 17 to 19 of Erf 960.
[38]
While court orders must be obeyed
for as long as they are in force even if they have been wrongly made
the situation in this instance
was different. First, the March order
was for the demolition of informal housing.
Section
26(3) of the Constitution provides:
‘
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the relevant
circumstances’.
Seized
with demolition and eviction matters, courts are enjoined by the
Constitution to consider all relevant circumstances.
[9]
The March order was granted urgently, collaboratively without
opposition from Ethekwini (which provided the evidence for the
application)
and SAPS, without notice to the occupiers and
consequently without ‘considering all the relevant
circumstances’.
[39]
Second, the March order was overtaken by
the August and subsequent orders. Practically the LIU could not
implement the March order
without violating the subsequent orders.
The order directing that the marking of the sites has yet to be
undertaken.
[40]
Third,
municipalities have a ‘direct and substantial’ interest
in litigation that results in homelessness.
[10]
They have been joined in such litigation because their constitutional
obligations to the homeless are automatically engaged when
courts
grant eviction orders.
[11]
Consequently Ethekwini’s application for the March order was
extraordinarily insensitive to its constitutional commitments.
[41]
Fourth,
the March order was a nullity.
[12]
It was sought and obtained without notice to the plaintiff and
occupiers of the informal settlement. Ethekwini proffered no evidence
that it served the March order on the plaintiff or anyone else.
Effectively, the March order was granted without having afforded
the
owners and (potential) occupiers of the shacks an opportunity to be
heard before the shacks were demolished. Consequently the
March order
was not binding on them.
[13]
In all the circumstances, to persist in these proceedings on relying
on it again signals intransigence on the part of Ethekwini.
[42]
Against this background, counsel for the
plaintiff submitted that by the LIU repeatedly defying the August and
September court orders
it provoked the plaintiff to resist the
demolitions with force. Mr Kippen who accompanied Mr Le Cordier
conceded that the occupiers
would not have been aware of the
intention of members of the LIU to demolish only unoccupied shacks;
consequently their response
to the demolitions was predictably
hostile.
[43]
The March order on which Ethekwini relied
to effect the demolitions did not cite the plaintiff as a party. This
is immaterial to
determining the lawfulness of the conduct of the
members of the LIU in violating the August and September court
orders.
[44]
There
is a steady line of cases from the appellate courts that impose an
obligation on local authorities to engage meaningfully
with unlawful
occupiers of land.
[14]
Surprisingly, Ethekwini sought and secured the March order apparently
without any engagement. Counsel for Ethekwini submitted that
any
engagement was not possible because the shacks demolished had no
occupants. But the structures were shacks for human occupation.
Human
hands were involved not only in the construction of the shacks but
also in the procurement of the materials, plans to occupy
the
structures once built and to rebuild them once demolished. Evictions
and homelessness were inevitable. Thus, even if the shacks
were
unoccupied, members of the LIU ought reasonably to have anticipated
that the destruction of the unoccupied structures would
lead to
homelessness. Instead of avoiding homelessness, Ethekwini
created it. Worse still, it doggedly continued to demolish
the shacks
in the face of escalating resistance. Seeking out and engaging
meaningfully with those affected was Ethekwini’s
constitutional
duty.
[45]
If Ethekwini attempted to engage
meaningfully with the occupiers of the informal settlement at Cato
Crest it led no such evidence.
The court acknowledges that
Ethekwini’s duty to engage meaningfully would not been easy.
Evidence of protests by the community
against the respondents’
employees on at least three instances that surfaced in this trial
suggests that the informal settlement
community was unapproachable
for dialogue. Ethekwini would not be able to fulfil its
constitutional responsibilities if the community
fails or refuses to
engage meaningfully. Nor can peaceful solutions be found if the
community’s ostensible demand is for
social housing but its
protest actions are for some other unarticulated purpose.
[46]
In these proceedings the court’s
insight into the conflict is but a snapshot view of protracted
struggles over a chronic shortage
of housing. So the debate is no
longer about who initiated the conflict. Nor is it about who is right
and who is wrong. No one
can doubt that the demolition-rebuilding
tactics are highly risky not only for the protagonists but also for
social order. Violence
will spiral. Destruction not construction will
continue. In the absence of any suggestion of a better alternative
meaningful engagement
remains pre-eminently the way to overcome this
impasse. It has the imprimatur of the Constitutional Court for
resolving socio-economic
rights disputes. Without it there can be no
return to rationality; without rationality nothing resembling social
order is conceivable.
[47]
In executing its constitutional obligations
Ethekwini has a duty to initiate a process of meaningful arrangement
with the occupiers
of the informal settlement. How this process
should unfold is a matter for Ethekwini to determine preferably with
the occupiers
and any other person or entities having an interest. In
so far as the MEC is responsible for providing housing she would have
an
interest. The Movement definitely has an interest. The security
forces would have an interest in restoring peace in order to
facilitate
meaningful engagement. The parties should seriously
consider engaging the services of mediators. Meaningful engagement
would have
no prospects of success if the protagonists do not
genuinely commit to finding peaceful solutions.
[48]
The court digressed into eviction law at
the invitation of the plaintiff who pitched the evictions and
demolitions as his explanation
for challenging Mr Le Cordier.
Notwithstanding that the value of a shack was insignificant in
comparison to the costs of a five-day
trial in the High Court, it
took up a significant portion of the trial time. Throughout the trial
people apparently supportive
of the plaintiff occupied the gallery.
Demolitions, evictions and homeless were the real causes of the
conflict between the occupiers
and the respondents. The plaintiff’s
causes were but a proxy for their struggles. However, recognising the
real causes of
conflict does not justify any party resorting to
violence. Although the court finds that the conduct of the members of
the LIU
was unlawful and highly provocative it cannot sanction
violence unless it is in self-defence of person or property.
[49]
The question remains: Did the plaintiff
stab Mr Le Cordier in self-defence? Having found that the plaintiff
failed to prove that
he had a shack in Cato Crest the court must find
that his actions were not in defence of his property. Without any
corroboration
of his alleged association with anyone whose shack had
been demolished or that he lived in the settlement (an issue that was
hotly
contested), the court has to approach his evidence with
caution. Even if he had established such a close connection with
other
occupiers the circumstances of the assault must be examined
carefully.
[50]
The plaintiff’s version is not
credible in all respects. His evidence that Mr Le Cordier shot at him
first with the shotgun
was not put to the witnesses for Ethekwini.
Nor was it put to them that when Mr Le Cordier fell the handgun fell
from his hand.
The plaintiff had demonstrated to the court how he had
stabbed Mr Le Cordier once and turned and walked away from him. Given
that
the plaintiff stabbed Mr Le Cordier when he was highly charged
emotionally, it is unlikely that he would stab the disarmed Mr Le
Cordier once only and retreat. What then stopped him from continuing
to attack Mr Le Cordier? It had to be Mr Le Cordier shooting
him in
his abdomen to stop the plaintiff from stabbing him again. For this
he had to have his pistol.
[51]
On the plaintiff’s own version he
advanced towards Mr Le Cordier bearing a spear-like rod and a
lid-like plastic shield. The
plaintiff did not dispute Mr Le
Cordier’s evidence that he shouted twice to the plaintiff to
stop and that he fired the paintball.
He alleged that did not hear Mr
Le Cordier shout. The plaintiff continued to advance towards Mr Le
Cordier notwithstanding Mr Le
Cordier’s attempts to stop him by
shouting at him and by firing the paintball. On the plaintiff’s
own evidence he continued
to advance after he had been shot in the
abdomen, incensed by the demolitions and being shot. He seized his
oppornity to stab Mr
Le Cordier once he had fallen on his back.
[52]
Against this evidence even if one accepts
the plaintiff’s version that Mr Le Cordier had shot him before
the plaintiff stabbed
him, it is clear that the plaintiff was not
deterred by either of the two verbal warnings or the paintball
emissions. He resorted
to self-help. Mr Le Cordier acted
lawfully in defending himself. At most the plaintiff’s reasons
for attacking Mr Le
Cordier might mitigate a sentence if he had been
criminally prosecuted; it does not entitle him to compensation for
damages for
unlawful assault.
[53]
In these circumstances I find that the
plaintiff initiated the attack on Mr Le Cordier. Accepting that his
anger against the unlawful
conduct of the LIU was justifiable his
resorting to violence, taking the law into his own hands and
violating the rule of law is
unjustified. Accordingly I find that
employees of Ethekwini did not assault the plaintiff unlawfully.
Claim two: Damages for
demolition of plaintiff’s shack
[54]
Having failed to prove that he had a shack
this claim must be dismissed.
Claim three: Damages
for unlawful arrest and detention
[55]
The singular reason for finding in favour
of the plaintiff is that the SAPS failed to call Captain Khawula as a
witness. It was
his decision to arrest the plaintiff. He had to
testify about his reasons for doing so.
[56]
Counsel for SAPS failed to proffer any
explanation for failing to call Captain Khawula other than that he
had retired. She relied
on
Minister
of Police
v
Ndala
1956
(2) SA 777
(T) at 780 to support her submission that the evidence of
the instructing officer is dispensable if the evidence of the
arresting
officer is led. The facts of
Ndala
are distinguishable in that the instructing officer was present when
the arrest was effected. That is not the case in this instance.
Counsel for SAPS also relied on
R
v
Blom
1939
AD 138
at 202-203 for the submission that the court should draw the
inference that Captain Khawula had issued the instruction after
having
acquainted himself with the statements in the docket.
Inferences may be drawn only after facts have been proved to justify
them.
In this case SAPS failed to prove that the statements in the
docket came to the attention of Captain Khawula. Furthermore, the
only statement available on 21 September 2013 was that of Mr Le
Cordier. The plaintiff had not given a statement at that stage.
He
was in a critical condition and therefore did not pose a flight risk.
Arresting him without a warrant under these conditions
called for an
explanation. The oral testimony of Captain Khawula in court was
indispensable unless there were cogent reasons why
it could not be
adduced.
[57]
Without Captain Khawula’s reasons for
arresting and detaining the plaintiff and doing so without a warrant,
the court must
find that the SAPS failed to discharge the onus of
proving the lawfulness of its actions. Consequently, his arrest and
detention
were unreasonable and unlawful.
[58]
At the commencement of the trial the court
granted a separation of issues with the parties agreeing to proceed
on the issue of liability
only.
Order
[59]
Therefore I make the following order:
(1)
The claim against Ethekwini Metropolitan
Municipality, the first defendant to compensate the plaintiff for
damages for shooting
him on 21 September 2013 is dismissed with
costs.
(2)
The claim against Ethekwini to compensate
the plaintiff for damages for allegedly demolishing his property is
dismissed with costs.
(3)
The Minister of Safety and Security, the
second defendant is liable to compensate the plaintiff for arresting
and detaining him
unlawfully on 21 September 2013 until his release
from custody in November 2013 with costs.
_________________
Pillay J
APPEARANCES
Counsel
for the plaintiff : Anne-Marie De Vos SC, S. Wilson,
I
De Vos
Instructed
by : Bowman Gilfillan
Tel:
(031) 265 0651
Ref:
Ms T Nichols/LT/MSER0013
Counsel
for first defendant : N Bhagwandeen
Instructed
by : Mchunu Bulose & Partners
Tel:
(031) 301 5399
Ref:
Madikizela/y/ETM017/14
Counsel
for the second defendant : N Khumalo
Instructed
by : The State Attorney KwaZulu-Natal
Tel:
(031) 365 2545
Ref:
Mr
Kunene/ju
Date of Hearing : 31 July
2017- 4 August 2017
Date of Judgment : 30
August 2017
[1]
Zulu
and others
v
Ethekwini
Municipality and Others
2014 (4) SA 590
(CC)
para
65.
[2]
S
34 of the Constitution of the Republic of South Africa, 1996.
[3]
S
172(1)(b) of the Constitution.
[4]
Zulu
and others
v
Ethekwini
Municipality
and
Others
para 62.
[5]
Minister
of Law & Order & Another
v
Dempsey
1988
(3) SA 19
(A) 38 B-C;
Zealand
v
Minister
of Justice & Constitutional Development
[2008] ZACC 3
;
2008 (2) SACR 1
(CC) [also reported at
[2008] JOL 21448
(CC) at para
24 – 25.
[6]
Zulu
and others
v
Ethekwini
Municipality
and
Others
para 51-64.
[7]
Zulu
and others
v
Ethekwini
Municipality
and
Others
para 37.
[8]
Zulu
and others
v
Ethekwini
Municipality
and
Others
para 25-26, 35-36, and 39.
[9]
Occupiers
of Erven 87 & 88 Berea v De Wet N.O. and another
[2017]
ZACC 18
para 40.;
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) para 23, 36
[10]
City
of Johannesburg
v
Changing
Tides
2012 (6) SA 294
(SCA) para 37;
The
Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v
Steele
[2010]
ZASCA 28
;
2010 (9) BCLR 911
(SCA) (
Shulana
Court
)
at paras 11 - 15;
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.
[2017]
ZACC 18
para 62
[11]
Kayamandi
Town Committee
v
Mkhwaso
and Others
1991 (2) SA 630
(C);
Occupiers
of erven 87 & 88 Berea v Christiaan Frederick De Wet N.O.
ibid
para 59
;
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011]
ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue
Moonlight
)
para 24
[12]
Master
of the High Court (North Gauteng High Court, Pretoria)
v
Motala
NO and Others
2012 (3) SA 325
(SCA) para 11-12 and 14-15
[13]
Kayamandi
Town Committee
v
Mkhwaso
and Others
1991 (2) SA 630
(C);
Lewis
& Marks
v
Middel
1904
TS 291
[14]
City
of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
note
11 above para 57; 78;
City
of Johannesburg
v
Changing
Tides
2012 (6) SA 294
(SCA) and the cases cited there;
Brian
Ray ‘Occupiers of 51 Olivia Road v City of Johannesburg:
Enforcing the Right to Adequate Housing through “Engagement”’
8
Hum.
Rts. L. Rev
.
703 2008