Free State Social Housing Company v Rossouw (4214/2015) [2016] ZAFSHC 161; [2017] 1 All SA 170 (FB) (22 April 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 161
|

|

Free State Social Housing Company v Rossouw (4214/2015) [2016] ZAFSHC 161; [2017] 1 All SA 170 (FB) (22 April 2016)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Application
Number:   4214/2015
In
the matter between:
FREE
STATE SOCIAL HOUSING COMPANY
…................................
Applicant
and
JULIANA
ROSSOUW
….............................
1
st
Respondent
JM
MALAHA
…............................
2
nd
Respondent
ADAM
CEASAR
…............................
3
rd
Respondent
ELIZABETH
FARLAND
…..............................
.4
th
Responde
n
t
PAULENE
NAICKER
….............................
5
th
Respondent
SHALLOTE
BLOM
…............................
6
th
Respondent
AARON
SEBOKOLODI
….............................
7
th
Respondent
MATTHIEU
DJEBI
…............................
.8
th
Respondent
PULANE
CHEGODI
….............................
9
th
Respondent
DISEBO
MALOISANE
…...................
10
th
Respondent
MIRANDA
B
ASSON
…..............................
11
th
Respondent
OUPA
MESELANE
….............................
12
th
Respondent
THAKANE
NDLONDLO T/TSULUB
A
…...............................
13
th
Respondent
LIBUSENG
KHABO
…..............................
14
th
Respondent
ELGIN
FEMELE
…............................
15
th
Respondent
MOKAMOSHOT
MOILWA
…..............................
16
th
Respondent
MA
MATSIE
….............................
17
th
Respondent
MOTHEO
KUOAPE MOERANE
…...............................
18
th
Respondent
SYLVESTER
THAHANE
…..............................
19
th
Respondent
MOGOS
TWELDEMEDHIN
…..............................
20
th
Respondent
THEMBA
MAZIBUKO
…....................
21
st
Respondent
KOFI
S
I
AW
…...........................
.22
nd
Respondent
THEMBA
JONAS
…..............................
23
rd
Respondent
T
TSUNKE
…..................
24
th
Respondent
NTOMBIKAYISE
MHALAMBI
…...............................
26
th
Respondent
NTHAMA
LITABE
….............................
27
th
Respondent
MARTINA
VOOGT
….............................
28
th
Respondent
ANNETTE
SELOMANE
…..............................
29
th
Respondent
TESHOME
FIRDE
….............................
30
th
Respondent
MALEFU
NTHABI
….............................
31
st
Respondent
MAPASEKA
OLIPHANT
…..............................
32
nd
Respondent
MOHALE
MATSUMA
S
M
…..............................
33
rd
Respondent
K
BOOM
…............................
34
th
Respondent
DAN
KGOTHULE
…............................
35
th
Respondent
BANDILE
MASUMBA
….............................
36
th
Respondent
MPHO
MPEAKE
….............................
37
th
Respondent
MARIA
LITHAKO/THULO
…..............................
38
th
Respondent
NTHABELENG
YAWA
….............................
39
th
Respondent
VATISWA
MALGAS
…..............................
40
th
Respondent
MAGRET
MENONG
…............................
41
st
Respondent
THULANI
MAPHALALA
….............................
42
nd
Respondent
ANDILE
GALAMFANA
…..............................
43
rd
Respondent
EXCELL
MLANDU
…............................
44
th
Respondent
!SABELLA
VIMBELA/THEBE
…..............................
45
th
Respondent
AZIZ
LIMBABA
….............................
46
th
Respondent
ANDRIAS
MOLELEKI
…....................
47
th
Respondent
ELIAS
MOLOI
….............................
48
th
Respondent
LERATOE
NENE
…..............................
49
th
Respondent
SANJA
PELSER
….............................
50
th
Respondent
MELITA
M MOTLAPING
…..............................
51
st
Respondent
ARON
J RAPHUTSI
….............................
52
nd
Respondent
MASABATHA
MAKAE
…..............................
53
rd
Respondent
POTSO
JANTJIE
….............................
54
th
Respondent
KHWEJANE
NTIMUTSE
…..............................
55
th
Respondent
NONTEMBEKO
GUGU
…..............................
56
th
Respondent
SSM
MOGOERA-LEEPILE
….....................
57
th
Respondent
LEBOHANG
MAPOTA
…..............................
58
th
Respondent
LESELWANE
NTSHEKHE
…..............................
59
th
Respondent
THANDI
NANGU
….............................
60
th
Respondent
LORETTA
MOHUTSIWA
…...............................
61
st
Respondent
GODFREY
RIKHOTSO
….............................
62
nd
Respondent
LEBOHANG
SHONGWE MM
…..............................
.63
rd
Respondent
TINY
MOSHOU
….............................
64
th
Respondent
VICTOR
LEKHONE
….............................
65
th
Respondent
THOLWANE
METHOLA
…..............................
66
th
Respondent
UTOMO
MAKHOBA
….............................
67
th
Respondent
PAULUS
CHAP
…..............................
68
th
Respondent
JULIA
MOKHACHANE
…..............................
69
th
Respondent
NOZI
NTULINI
….............................
70
th
Respondent
BOITUMELO
KEKANA
…...............................
71
st
Respondent
XHOLILE
KUBHEKA
….............................
72
nd
Respondent
DENEO
POTSANE
….............................
73
rd
Respondent
ELIAS
RAPILETSA
….............................
74
th
Respondent
TRHEPISO
LETOOANE
…..............................
75
th
Respondent
AS
MOTSWERE
…...................
76
th
Respondent
MC
MONKHI
…............................
77
th
Respondent
ELIAS
DIRE
…............................
78
th
Respondent
TEBOGO
POOE
…...................
79
th
Respondent
OUPA
MONEI
….............................
80
th
Respondent
SARAH
KGONGWAANA
…...............................
81
st
Respondent
JOHANNA
SPICKER
….............................
82
nd
Respondent
SIVIWE
THABATHA
…..............................
83
rd
Respondent
AZARIAL
MOKEKI  AM
…..............................
84
th
Respondent
EDWIN
MAILE
…...........................
85
th
Respondent
KJ
NKEANE
….............................
86
th
Respondent
ALFRED
BUSHULA
…............................
87
th
Respondent
SIMANGELE
TLADI
….............................
88
th
Respondent
ANSLEN
NGEULUE
…..............................8
9
th
Respondent
ANNAH
VAN ROOYEN
…..............................
90
th
Respondent
THANDI
RADEBE
…..............................
91
st
Respondent
L
MARIPE
…...........................
92
nd
Respondent
KENALEMANG
JACK
…....................
93
rd
Respondent
KITSO
TIMENYANE
…..............................
94
th
Respondent
THANDI
MAKHETHA
….............................
95
th
Respondent
SIMON
MOFOKENG
….............................
96
th
Respondent
MG
MOLELLE
…............................
97
th
Respondent
NOLENE
HAAS
….............................
98
th
Respondent
SETAI
MANGOAELA SP
…...............................
99
th
Respondent
MANGAUNG
METROPOLITAN
MUNICIPALIT.
.......................................
1
00
th
Respondent
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
..
ON:
22
..
APRIL
..
2016
____________________
[1]
This application was instituted in terms of the Prevention of Illegal
Eviction from and Unlawful Occupation
of Land Act, 19 of 1998
(“PIE”), for the eviction of the 1
st
to
the 99
th
respondents, as alleged unlawful occupiers of the
Units in Phase 2 of the Brandwag Development, Brandwag, Bloemfontein.
[2]
The 100
th
respondent, the Mangaung Metropolitan
Municipality (“the Municipality”), is the legal successor
of all rights and obligations
of the Bloemfontein Transitional Local
Council and the Mangaung Local Municipality. I will therefore
henceforth only refer to the
Municipality without differentiating
between the respective entities.
The
salient facts of the applicant`s case:
[3]
The Municipality is the registered owner of Erf 29469, Erf 29470 and
Erf 29471, situated in Bloemfontein
Extension 77. The Municipality
and the Consortium consisting of Kopana Investments (Prop) Ltd and
National Real Estate (Prop) Ltd
concluded a certain Property
Management Agreement, dated 21 May 2009, in terms of which the
Consortium was appointed as the lawful
agent of the Municipality for
the management and maintenance of the Brandwag Project as defined
therein. On 10 October 2009 the
Municipality ceded, assigned and
transferred all its rights and obligations in terms of the aforesaid
Property Management Agreement
to and in favour of the applicant, as
cessionary without recourse, subject thereto that notwithstanding the
aforesaid, the Municipality
shall continue to fulfil and to carry out
such obligations as may be required by legislation or State Policy
guidelines, in conjunction
with the applicant, to achieve the intent
and purpose and implementation of the Property Management Agreement
by the Consortium.
A copy of the Deed of Cession (“the cession
agreement”), with annexures thereto, is attached to the
founding affidavit
as annexure “B”. A performance
agreement concluded between the Municipality and the applicant is one
of the attachments.
[4]
During or about 9 July 2010 a Notarial Agreement of Lease (“the
notarial lease”) concluded
between the Municipality and the
applicant was registered. In terms of the notarial lease the
applicant leases the aforesaid erven
from the Municipality from the
effective date of 1 February 2010 until 31 January 2025. A copy of
the notarial lease is attached
to the founding affidavit as annexure
“A”.
[5]
Both the aforesaid performance agreement and the lease agreement
contain,
inter alia
, the following definitions:
“
Approved
Project
means a social housing project in a restructuring zone
approved by a provincial government pursuant to an application for
capital
grant funding to undertake the acquisition, development,
conversion or upgrading of buildings for social housing.”
“
Brandwag
Project
means the approved project for the management,
maintenance and refurbishing of the existing 351 municipal flats
situated in the
suburb called Brandwag, Bloemfontein located on
certain land on the attached site layout plan number 399/02, attached
hereto as
Annexure “A”, as well as the design, build and
development of approximately 592 new flats on the same land.”
“
Social
Housing
means a rental or co-operative housing option for low to
medium income households at a level of scale and built form which
requires
institutionalised management and which is provided by social
housing institutions or other delivery agents in approved projects
in
designated restructuring zones with the benefit of public funding as
contemplated in the Act (Social Housing Act, 16 of 2008).”
[6]
The Brandwag Project is therefore a social housing project and in
terms of clause 7.1 of the lease agreement
the applicant is obliged
to develop the property by the construction of housing units and
rental accommodation suitable for low
to medium income households.
[7]
In terms of clause 4.6 of the Social Housing Policy for South Africa,
approved in June 2005 and attached
to the founding affidavit as
annexure “C”, a person only qualifies for a social
housing subsidy to lease a unit or
flat in a social housing project
if the total gross monthly household income is not below R1 500.00
and not more than R7 500.00.
Should the gross monthly household
income at any time fall outside the aforesaid income band, such
occupant no longer qualifies
for the social housing project and is
disqualified from occupying a flat or unit in the project.
[8]
The 1
st
to 99
th
respondents are occupants of
the units in phase 2 of the Brandwag Project. They previously
concluded written lease agreements with
the Municipality. In terms of
clause 2.3 of the said lease agreements the leasing is subject to the
provisions of the applicable
Housing Legislation as well as the terms
and conditions agreed upon between the parties and contained in the
respective lease agreements.
[9]
The applicant states the following in paragraph 22 of its founding
affidavit:
“
Respondents
1 – 99 are currently in occupation of the abovementioned
property. Those respondents have no legal right to occupation
of the
property and are in unlawful occupation of the said premises. I must
draw the attention of the Honourable Court to the fact
that the
applicant brought a similar application against the same respondents
earlier this year under Application Nr 5295/2015
which application
was unsuccessful. Although the presiding Judge did not provide
written reasons for the dismissal of the application,
he
inter
alia
found in his
ex tempore
decision that the said
respondents had valid lease agreements in place and were therefore
not in illegal possession of the property.
The applicant has in the
meantime corrected this and has served written notices of
cancellation on respondents 1 – 99 as
per Annexure D 1-99
attached hereto. Proof of service is attached hereto as Annexure DD
1- 99.”
[10]
Prior to the launch of the aforesaid unsuccessful application, a
social facilitation tenant consultation exercise
was conducted and
performed, a report of which is attached to the founding affidavit as
annexure “E”, dated 8 March
2013.
[11]
According to the applicant the number of tenants illegally occupying
the units is ninety-nine, of which five are
pensioners.  The
illegal occupants can be categorised into three categories:
1.
they do not qualify in terms of the scheme;
2.
they do not verify and refuse to verify their particulars;
and/or
3.
they are not paying their rent.
[12]
The following allegations are contained in paragraph 27 of the
founding affidavit:
“
The
applicant has for several reasons, including humanitarian reasons,
decided not to renew the application for eviction immediately
after
the unsuccessful application. After the service of the notices of
cancellation in April 2015, and in view of the winter season,

additional time was afforded to the respondents to vacate the
property on a voluntary basis. The good intentions of the applicant

were met with a refusal to vacate. Most of the respondents are not
paying monthly rental as well as municipal charges for water
and
other service charges as more fully appear from Annexure F.”
[13]
It is pointed out that the applicant is a non-profitable organization
who is totally dependent on rental income
to be able to fulfil its
contractual obligations.
[14]
The applicant avers that the respondents’ illegal occupation
also cause prejudice to people who qualify for
social subsidies but
that cannot be accommodated due to the respondents` unlawful
occupation. All the respondents are well aware
and were informed by
the latest in December 2014 that they will have to vacate the
properties to enable the applicant to perform
its contractual
obligations to renovate the units.
[15]
Regarding alternative housing, the applicant states the following in
paragraph 30 of the founding affidavit:
“
The
applicant is in a position to provide temporary accommodation to the
respondents should they be evicted for a period of one
month in a
different block of flats in the same development. The offer is
conditional in that the respondents should pay for electricity
and
water. No rental will be charged for the month. MMM has also offered
to assist those tenants earning less than R 3500.00 and
more than R
7500.00 as per Annexure G. I can confirm that the offer still
stands.”
Consideration
of the merits of the application with specific reference to the
grounds of opposition by the respondents:
[16]
Most of the respondents` answering affidavits are almost identical
and contain similar defences based on the same grounds.
I will
consequently record and deal with most of the defences without
reference to the specific affidavits.
Locus
Standi:
[17]
According to the respondents, the applicant does not have the
necessary
locus standi
to bring the application. The cession
agreement and the notarial lease do not constitute a basis for such
locus standi.
The applicant is not the owner nor the person in
charge of the property as defined in sections 1 and 4(1) of PIE.
[18]
Section 4(1) of PIE determines as follows:
“
Notwithstanding
anything to the contrary contained in any law or the common law, the
provisions of this section apply to proceedings
by an owner or person
in charge of land for the eviction of an unlawful occupier.”
“
Owner”
and “person in charge” are defined as follows in section
1 of PIE:
“
'owner'
means the registered owner of land, including an organ of state;
'person in charge'
means a person who has or at the relevant time had legal authority to
give permission to a person to enter or reside upon the land
in
question;”
[9]
The relevant parts of clauses 4.3, 4.4 and 4.5 of the notarial lease
determine as follows:
“
4.3
The Lessor shall grant the Lessee vacant possession of the Property
with effect from the Commencement
Date.
4.4
…The parties shall jointly endeavour to ensure that all
relevant processes are completed
with the least possible delay to
enable the Lessee to have full and uninterrupted occupation of the
whole of the property…
4.5
In the event that any person or group of persons, other than persons
authorised by the Lessee,
at any time after the Commencement Date
unlawfully occupy or seek to unlawfully occupy the Property, the
Lessor shall render all
such assistance as reasonably may be required
by the Lessee, at the cost of the Lessee, in order to evict such
person or persons
from the property.” (Own emphasis)
[20]
As stated in the founding affidavit, clause 7.1 of the notarial lease
obliges the applicant to construct
housing units and rental
accommodation suitable for low to medium income households on the
property. Clauses 13.2, 13.3 and 13.4
of the lease agreement then
provide the applicant with the following rights:
“
13.2
The Lessee shall be entitled to sublease the existing municipal flats
comprising the Brandwag Project as from the
Effective date.
13.3
The Lessee shall further be entitled, in respect of the further
housing units once completed, to enter into
subleases with tenants
who meet the criteria contemplated in the Social Housing programme
and as recorded and agreed by the Parties
from time to time.
13.4
The Lessee shall further be obliged to manage and maintain all the
housing units…”
[21]
When the aforesaid rights and obligations of the applicant are
considered in conjunction with the definition of
“person in
charge”, it is evident that the applicant is the “person
who has…legal authority to give permission
to a person to
enter or reside upon the land in question”.
[22]
I consequently find that the applicant does have the necessary
locus
standi
to have instituted the application.
Res
Judicata:
[23]
The current application was instituted after the previous eviction
application under Application Nr 5295/2014 had
been dismissed.
According to the respondents the applicant has not shown any new
grounds in support of the current application
that did not form part
of the previous unsuccessful application. The Court has therefore
already pronounced itself on the grounds
for and the merits of the
application.
[24]
However, the respondents also averred as follows in their response to
paragraph 22 of the founding affidavit, which
I cited in paragraph
[9],
supra
:
“
22.1 I further
like to mention that the applicant is misleading the Honourable Court
that the application under case number 5295/2015
was dismissed solely
for the reason that myself and other respondents herein have a
binding lease agreement and which same has
not been terminated and/or
cancelled herein.
22.2
The said application was dismissed again for the reason that the
Hundredth Respondent did not provide a report which is mandatory
in
terms of the provisions of the PIE Act that our eviction will be
“just and equitable” or not.
22.3
Furthermore, the said application was also dismissed as there is no
alternative accommodation and/or land that have been earmarked
for
all of us in the event the Court grants an order for eviction.
22.4
It is my submission that the Application was dismissed because all
the Respondents had valid and legal lease agreements.”
[25]
The parties seem to be
ad idem
at least regarding the fact
that the existence of the lease agreements constituted a (or the
only) reason why the previous application
was unsuccessful. I will
return to the alleged other reasons.
[26]
In
National Sorghum Breweries Ltd (t/a Vivo African Breweries)
v International Liquor Distributors (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) at 239 E – 240 B, the following principles were
re-affirmed:
“
[2]
The requirements for a successful reliance on the
exceptio
were, and still are:
idem
actor
,
idem
reus
,
eadem
res
and
eadem
causa petendi.
This means that the
exceptio
can be raised by a defendant in a later suit against a plaintiff who
is 'demanding the same thing
on
the same ground
'
(
per
Steyn CJ in
African
Farms and Townships Ltd v Cape Town Municipality
1963
(2) SA 555 (A)
at 562A); or which comes to the same thing, '
on
the same cause
for the same relief' (
per
Van Winsen AJA in
Custom
Credit Corporation (Pty) Ltd v Shembe
1972
(3) SA 462 (A)
at 472A - B; see also the discussion in
Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk
1995
(1) SA 653
(A)
at 664C - E); or which also comes to the same thing, whether the
'same issue' had been adjudicated upon (see
Horowitz
v Brock and
Others
1988
(2) SA 160
(A)
at 179A - H).
[3]
The fundamental question in the appeal is whether the same issue is
involved in the two actions: in other words, is the same
thing
demanded on the same ground, or, which comes to the same, is the same
relief claimed on the same cause, or, to put it more
succinctly, has
the same issue now before the Court been finally disposed of in the
first action?
[4]
…
[5]
Nor are the respective claims based on the same grounds or same cause
of action.” (Own emphasis)
[27]
It is common cause that the lease agreements between the Municipality
and the respondents were still in existence during the
institution
and adjudication of the unsuccessful application. The cancellation of
the lease agreements did therefore obviously
not constitute the
ground or cause of the unsuccessful application, whilst it clearly
does so in the current application. Although
similar relief is being
sought in this application to that which was sought in the
unsuccessful application, it is based on a new
ground or cause,
namely, the cancellation of the lease agreements. In such
circumstances
res judicata
cannot, in my view, successfully be
raised as a defence.
[28]The
two additional grounds which the respondents allege constituted
further reasons why the previous application was dismissed,
are to be
considered against the background of the following principles
summarised in
Erasmus Superior Court Practice
, D.E. van
Loggerenberg, at OS, 2015, D1-291:
“
The
onus
is on the party raising the defence to prove it. To
determine whether a matter is
res judicata
the judgment, order
and pleadings must be examined. The record of the previous action
should be produced, or adequate reasons for
the non-production should
be given. It has been said that if there is any doubt as to any of
the essentials required to be proved,
the plea will fail.”
[29]
Although the presiding Judge in the previous application did not
provide written reasons for his judgment, he apparently gave
an
ex
tempore
judgment. That, as well as the proceedings as such, would
have been recorded. It is general practice that when a Judge delivers
an
ex tempore
judgment, any party to the proceedings is
entitled to request a transcribed copy of such a judgment (and of the
proceedings if need
be) from the officially appointed scribes. The
respondents failed to provide any such transcription and no reason or
explanation
for their failure has been advanced in the answering
papers. In the circumstances where the parties are not
ad idem
regarding the question whether the presiding Judge in fact
pronounced himself on these two issues, I am unable to properly
adjudicate
the defence of
res judicata
on these grounds in the
absence of the aforesaid transcriptions. The respondents have
therefore not discharged their onus in this
regard.
Lis
Alibi Pendens:
[30]
Some of the respondents allege that similar applications have
previously been instituted against them by the applicant, based
on
the same cause of action and in respect of the same subject-matter,
which applications are still pending.
[31]
With regards to this allegation by the 98
th
respondent and
him referring to Application  Nr 3953/2013, the applicant
confirmed in its replying affidavit that it has given
instructions to
its attorneys of record in that matter to withdraw the said
application with immediate effect. An instructing letter
to that
effect is attached to the replying affidavit as annexure “PKM1”.
In these circumstances the defence of
lis pendens
cannot be
upheld in so far as the 98
th
respondent is concerned.
[32]
It is further alleged by the applicant in its replying affidavit that
in those few instances where the applicant brought a
similar
application against some of the other respondents, those proceedings
have either lapsed or have been withdrawn by the applicant.
The
applicant also correctly points out that the Court in any event has a
discretion to proceed with the present application, especially
as no
answering affidavits were filed in the previous proceedings as the
applicant did not proceed with those applications.
[33] In [zRPz]
K
eyter
NO v Van Der Meulen and Another NNO
2014 (5) SA 215
(ECG) at 217 F – 220 B the following relevant principles were
applied when the defence of
lis pendens
was raised:
“
[10] The defence
of
lis alibi pendens
arises when four requirements are met.
They are that:
(a)
there is litigation pending
(b)
between the same parties
(c)
based on the same cause of action
and
(d)
in respect of the same subject-matter.
Lis alibi
pendens
does not, if successfully invoked, put an end to the
plaintiff's or applicant's case. Rather, it allows for the staying of
the
later matter pending the final determination of the earlier
matter. Once the earlier proceedings have been finalised, however,
the later proceedings will be struck by, and terminated by, the
defence of res judicata. In
Nestlé (South Africa) (Pty) Ltd
v Mars Inc
Nugent JA said the following:
'The
defence of
lis alibi pendens
shares features in common with
the defence of
res judicata
because they have a common
underlying principle, which is that there should be finality in
litigation. Once a suit has been commenced
before a tribunal that is
competent to adjudicate upon it, the suit must generally be brought
to its conclusion before that tribunal
and should not be replicated
(
lis alibi pendens
). By the same token the suit will not be
permitted to be revived once it has been brought to its proper
conclusion (
res judicata
). The same suit, between the same
parties, should be brought only once and finally.'
[11]
The court is vested with a discretion as to whether to stay
proceedings or to hear the matter despite the earlier pending
proceedings. In
Loader v Dursot Bros (Pty) Ltd
Roper J
dealt with this aspect when he said:
'It
is clear on the authorities that a plea of
lis alibi pendens
does not have the effect of an absolute bar to the proceedings in
which the defence is raised. The Court intervenes to stay one
or
other of the proceedings, because it is
prima facie
vexatious
to bring two actions in respect of the same subject-matter. The Court
has a discretion which it will exercise in a proper
case, but it is
not bound to exercise it in every case in which a
lis alibi
pendens
is proved to exist . . . .'
The exercise of this
discretion is determined with reference to what is just and
equitable, as well as the balance of convenience.
[12]
As far as the onus is concerned, Harms states that as the later
proceedings are presumed to be vexatious, the party who instituted

those proceedings bears the onus of establishing that they are not,
in fact, vexatious. He or she does so by satisfying the court
that
despite all of the elements of
lis alibi pendens
being
present, justice and equity and the balance of convenience are in
favour of those proceedings being dealt with.
…
[20]
In my view, therefore, considerations of both justice and equity and
of the balance of convenience favour the determination
of the merits
of this matter despite the pending action. Consequently, the
lis
alibi pendens
defence fails.”
[34]
In so far as there may still be any other similar applications
pending against one or more op the current respondents (which
I do
not find, but accept for the sake of argument), I am convinced that
it indeed is just and equitable that the merits of the
current
application be determined. To do so is, in my view, in fact in the
interest of the respondents.  All the respondents
have had ample
opportunity to oppose the current application and to file answering
affidavits. They have incurred costs and have
most probably been
suffering from emotional stress due to their active participation in
the current application. It would serve
absolutely no purpose for the
current application to be stayed pending the finalisation of any
such other similar application,
especially in view of the fact that
any affected respondents will then still have to file answering
affidavits in such other application
and proceed with the litigation
process in those proceedings and in the process unnecessarily incur
even further costs. Contrary
thereto, the current application is ripe
for hearing and finality can be reached in the longstanding dispute
and concomitant litigation
between the parties by the adjudication of
this application. Therefore, even if it is to be accepted that all of
the elements of
lis pendens
may be present (which again I do
not find), justice and equity and the balance of convenience clearly
favour the determination
and finalization of the current application.
Lease
agreements between the Municipalty and the respondents:
[35]
The respondents allege that they have valid lease agreements with the
Municipality, which have not been ceded to
any third party and which
have not been cancelled by the Municipality. According to them there
is also no indication whether the
representatives of the applicant
and the Municipality were duly authorised to have signed the letters
of cancellation.
[36]
It is evident from the totality of the application papers that the
applicant accepts for purposes of this application
that the
respondents previously concluded lease agreements with the
Municipality pertaining to the relevant units they are currently

occupying. Most of the respondents also attached copies of their
respective lease agreements to their answering affidavits.
[37]
The essence of the contents of all these lease agreements is similar
and I will therefore deal with them simultaneously.
In terms of the
lease agreements the lease period shall endure from the commencement
date of the lease “
until it is terminated by either of the
parties by 1 (one) calendar month`s written notice, which notice
shall be given on or before
the 25
th
day of
the previous month”.
As already indicated earlier, the
applicant avers that written notices of cancellation have been served
upon the respondents and
proof of such service was attached to the
founding affidavit.
[38]
The relevant parts of the aforesaid notices of cancellation read as
follows:
“
Kindly
be advised that your agreement of lease of the abovementioned unit is
hereby cancelled and in terms of our general terms
of your lease
agreement, you are hereby given a one (1) month notice effective from
today the 10
th
April 2015.
You
are therefore requested to vacate the above property on or before the
10
th
May 2015 failing which you shall leave us with no
option but to proceed with legal proceedings against yourself which
you shall
be liable of the legal cost should you not adhere to this
notice.”(
sic)
The
notices are dated 9 April 2015 and were on face value thereof signed
by the “
CEO on behalf of Free State Housing Company”
and by an “
Official on behalf of Mangaung Metropolitan
Municipality”.
[39]
From the returns of service it is evident that the said notices were
served upon the respondents by the sheriff in terms of
the Rules of
Court on 10 April 2015. Although it was not required that the
cancellation letters were to be formally served upon
the respondents,
I presume that the applicant decided upon formal service by the
sheriff for purposes of proof of such service.
I am satisfied that
proper service of the notices upon the respondents has been effected
in terms of the Rules of Court and in
accordance with clause 15 of
the lease agreements.
[40]
I agree with the contentions by the respondents that the said lease
agreements had been concluded with the Municipality and
therefore the
cancellation thereof had to be effected by the Municipality. Like I
have already indicated, the cancellation notices
do seem to have been
signed by a representative of the Municipality. In response to the
respondents’ challenge of the authority
of such signatory, the
applicant avers in the replying affidavit that Mr Malefetsane Mokoena
signed the letters on behalf of the
Municipality and that he was, at
the time, duly authorised to do so. As confirmation of this averment,
a letter was attached to
the replying affidavit, dated 30 March 2015,
and which letter was written on the formal letterhead of the
Municipality. The said
letter was signed by Mr MM Moekoena, the Head:
Human Settlements, and was addressed to Mr MD Mokoena, the “
General
Manager: Mixed Development, Sub-Directorate: Mixed Development,
Directorate: Human Settlements”.
The letter reads as
follows:
“
You
are hereby appointed as acting Head: Human Settlements from the 1
st
April to 9
th
April 2015. You will be expected to carry out
all the duties and functions attached to the post of the Head: Human
Settlements.”
[41]
In view of the last mentioned allegations and supporting document and
considering that the cancellation notices  were
signed within
the time period during which Mr MM Mokoena acted in the said
position, I have to find that Mr Mokoena is the one
who signed the
cancellation notices on behalf of the Municipality and that he was
duly authorised thereto.
[42]
In my view it was not necessary or a requirement for valid
cancellation that a representative of the applicant had to sign
or
countersign the letters of cancellation. I therefore deem it
unnecessary to deal with the issue of the authority of the said

representative.
[43]
Many of the respondents aver that their right to occupation of the
units emanate from their lease agreements with the Municipality
and
not from any provisions of the Social Housing Policy, hence
non-compliance with the Social Housing Policy do not render their

occupation illegal.
The
respondents also allege that the determination of the criteria of
what constitutes “low to medium income households”
can
only be determined by the Minister by notice in the Government
Gazette and same has not been published.  In the absence
of such
a determination, the applicant cannot rely on an alleged obligation
to construct housing suitable for low to medium income
households.
Some
of the respondents furthermore dispute the allegations by the
applicant that their rental payments and/or electricity payments
are
in arrears. Some of the respondents also aver that the applicant
fails to pay money over to Centlec which they as tenants paid
to the
applicant towards their electricity accounts.
[44]
The last mentioned issues are however, in my view, irrelevant for
purposes of considering the validity of the cancellation
of the lease
agreements. The fact of the matter is that the lease agreements
provide for termination thereof by either party by
one month`s
notice. The right to cancel is not subject to any conditions. It is
therefore not necessary for the applicant to show
or proof
non-compliance with any of the provisions of the lease agreements
and/or of other applicable legislation, Policies or
Rules by the
respondents in order to rely on its cancellation of the lease
agreements. In terms of the lease agreements the applicant
was
entitled to cancel the lease agreements even in the absence of any
misconduct or breach of such provisions by the respondents.
[45]
In the premises I conclude that the applicant`s cancellation of the
lease agreements with the respondents by means of the cancellation

notices, constituted a valid cancellation of the said lease
agreements.
Illegal
Occupiers:
[46]
The respondents deny that they are illegal occupiers of the relevant
units which they are occupying. In
R
esnick V Government
of the Republic of South Africa and Another
2014 (2)
SA 337
(WCC) at 339 C reference was made to a two stage enquiry which
should be followed in matters like this:
“
It
is clear that PIE has set out a twofold enquiry. The court first
determines whether the person in respect of whom the eviction
order
is sought is an unlawful occupier. If that is the case, then,
secondly, it decides whether, after considering all the relevant

circumstances, it is just and equitable to grant such an order.
[47]
The common law principle for evictions based on the
rei
vindicatio
expressed in
Ndlovu
..
v
,,
Ngcobo;
Bekker and Another v Jika
2003 (1) SA 113
(SCA) at para [46]
is as applicable to evictions in terms of PIE:
“
When
the owner acknowledges (without there being any legal obligation to
do so) that the occupier has or had a right of occupation
(for
example in terms of a lease), the owner has, in addition, to prove
that the right no longer exists or is no longer enforceable,
for
example that the lease between them has expired or been cancelled
lawfully (see
Graham v Ridley (supra
);
Chetty v Naidoo
(supra
at 21)).”
[48]
An illegal occupier is defined in section 1 of PIE as follows:
“
unlawful
occupier
means a person who occupies land without the express or
tacit consent of the owner or person in charge, or without any other
right
in law to occupy such land, excluding a person who is an
occupier in terms of the
Extension of Security of Tenure Act, 1997
,
and excluding a person whose informal right to land, but for the
provisions of this Act, would be protected by the provisions
of the
Interim Protection of Informal Land Rights Act, 1996 (Act 31 of
1996).”
[49]
The respondents’ entitlement to occupy the current units indeed
emanated from their lease agreements with the Municipality.

Considering my finding regarding the validity of the cancellation of
the said lease agreements by the Municipality, I cannot but
find that
the respondents are currently illegal occupiers of the said units.
Procedural
Requirements:
[50]
No allegations are made by the respondents in the answering
affidavits regarding any alleged non-compliance with the procedural

requirements prescribed by PIE. In my view the said procedural
requirements have in fact been complied with by the applicant.
Just
and Equitable:
[51]
Section 4(7) of PIE determines as follows:
“
If
an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings are initiated,
a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering all the
relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has
been made
available or can reasonably be made available by a municipality or
other organ of state or another land owner for the
relocation of the
unlawful occupier, and including the rights and needs of the elderly,
children, disabled persons and households
headed by women.”
The
aforesaid period of six months is calculated from the date that the
occupation becomes
..
unlawful.See
..
Ndlovuv
..
Ngcobo;Bekker
and Another v Jika
,
supra,
at 123 F – 124 A.
The provisions of section 4(7) are therefore applicable to the
respondents.
[52]
In the judgment of
Ekurhuleni Metropolitan
Municipality
and Another v Various Occupiers, Eden Park Extension 5
2014
(3) SA 23
(SCA) at para [19] several circumstances and factors which
should be taken into account when considering whether the eviction is

just and equitable, were determined and highlighted:
“
[19]
Thus both the Constitution and PIE emphasise that the court must take
into account all relevant factors before granting an
eviction order.
As Wilson notes, the enquiry to be undertaken is therefore whether,
given all the relevant factual, legal and socio-economic

circumstances, it is just and equitable to order the eviction of the
unlawful occupier.
'This
requires a court to make a value judgment, but it must not do so in a
vacuum.'
There
are various considerations relevant to this determination, as
outlined both in the Act and through the case law, with each
factor
taking on either an increased or lesser importance depending on the
prevailing factual matrix of each matter. According
to Chenwi the
following are potentially relevant to the enquiry:
'(i)
(T)he manner in which the occupation was effected; (ii) the duration
of the occupation; (iii) the availability of suitable
alternative
accommodation or land; (iv) reasonableness of offers made in
connection with suitable alternative accommodation or
land; (v) the
timescales proposed relative to the degree of disruption involved;
(vi) the willingness of the occupiers to respond
to reasonable
alternatives put before them; (vii) the extent to which serious
negotiations have taken place with equality of voice
for all
concerned; and (viii) the gender, age, occupation or lack thereof and
state of health of those affected.”
[53]
The Municipality itself did not institute the current application. I
am consequently of the view that section 6
of PIE is not directly
applicable in this instance. In
Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) the Constitutional
Court differentiated as follows between the provisions of section 4
and section 6 of PIE:
“
[24] PIE provides
some legislative texture to guide the courts in determining the
approach to eviction now required by s 26(3) of
the Constitution. Its
preamble makes clear that it was enacted to do so. Its central
operative provisions are s 4, which deals
with evictions sought by
owners or persons in charge of property, and s 6, which is concerned
with eviction proceedings brought
by organs of State. There is
considerable difference in detail between the two provisions. They
emphasise that a distinction has
to be made on the basis of whether
the application for eviction is brought by the owner of property or
by the municipality. This
case deals with proceedings brought under s
6 by the municipality and does not require us to consider whether it
would have taken
a different form if it had been brought directly by
owners themselves under s 4
.
Despite their differences, both
sections emphasise the central role courts have to ensure equity
after considering all relevant
circumstances”.
[54]
However, the issue of the availability of suitable alternative
housing and a Municipality`s obligation in this regard is still
very
applicable and crucial in deciding the question of whether the
eviction will be just and equitable.  In the aforesaid
Port
Elizabeth Municipality
– judgment the following was
stated at paras [28] to [29]:
“
[28] There is
therefore no unqualified constitutional duty on local authorities to
ensure that in no circumstances should a home
be destroyed unless
alternative accommodation or land is made available. In general
terms, however, a court should be reluctant
to grant an eviction
against relatively settled occupiers unless it is satisfied that a
reasonable alternative is available, even
if only as an interim
measure pending ultimate access to housing in the formal housing
programme.
[29]
The availability of suitable alternative accommodation will vary from
municipality to municipality and be affected by the number
of people
facing eviction in each case. The problem will always be to find
something suitable for the unlawful occupiers without
prejudicing the
claims of lawful occupiers and those in line for formal housing.”
In
the judgment of
Sailing Queen Investments
v
The Occupational LA Colleen Court
2008 JDR 0056 (W) the said
obligation of a Municipality was dealt with in para [9] of the
judgment:
“
[9]
In any event, once respondents such as those in the present matter
are evicted, it inevitably becomes the responsibility of
the City
either as a result of the homelessness of the respondents, or the
need to resort to further unlawful occupation for shelter.
Therefore,
any eviction order made by this Court in the main application would
inevitably affect the City. In my view, no eviction
order can be just
and equitable without the intervention of the City in matters such as
the present. Our Courts have interpreted
both PIE and the Housing Act
107 of 1997 ("the
Housing Act&quot
;) as imposing obligations on
municipalities not only to fulfil their obligations under section 26
of the Constitution but also
to cater for individuals in emergency
situations, to provide information regarding their fulfilment of
statutory requirements for
plans to provide access to adequate
housing in terms of section 26 of the Constitution and their
implementation. The information
regarding the City's fulfilment of
such obligations is fundamental to a Court being able to determine
whether or not eviction is
just and equitable.
[55]
In the matter of
City of Johannesburg v Changing Tides 74
(Pty) Ltd and Others
2012 (6) SA 294 (SCA) the obligations of
a Municipality in the aforesaid regard were dealt  with in
detail:
[39]
Much of the litigation around evictions has dealt with contentions by
various local authorities that they do not owe constitutional

obligations to provide emergency accommodation to persons evicted
from their existing homes and facing homelessness as a result.

Contentions that they were not obliged to provide emergency housing
(
Grootboom
); alternative land on a secure basis (
Port
Elizabeth Municipality
); use their own funds to provide emergency
accommodation (
Rand Properties
); and provide emergency
accommodation to persons evicted at the instance of private property
owners (
Blue Moonlight
); have all been advanced and rejected
by this court and the Constitutional Court. Now that it is clearly
established that local
authorities do owe constitutional obligations
to persons evicted from their homes who face homelessness as a
result, it is appropriate
to set out their obligations to the court
in proceedings of this type. I deal only with cases where, on the
principles set out
above, they are joined in the litigation, and the
applicant alleges that the circumstances of the eviction are such
that it may
result in homelessness, and engage their constitutional
obligations in regard to the provision of temporary emergency
accommodation.
[40]
The general approach of local authorities, so far as it can be
discerned from the reported cases, has been to file with
the
court a general report detailing its current housing policy without
addressing the facts of that particular case. That is inadequate.
In
addition to such a report it must deal directly with the facts of the
particular case.”
[56]
The aforesaid obligation of a Municipality is also to be considered
in conjunction with section 7(2) of PIE:
“
7
Mediation
(2) If the municipality
in whose area of jurisdiction the land in question is situated is the
owner of the land in question, the
member of the Executive Council
designated by the Premier of the province concerned, or his or her
nominee, may, on the conditions
that he or she may determine, appoint
one or more persons with expertise in dispute resolution to
facilitate meetings of interested
parties and to attempt to mediate
and settle any dispute in terms of this Act: Provided that the
parties may at any time, by agreement,
appoint another person to
facilitate meetings or mediate a dispute, on the conditions that the
said member of the Executive Council
may determine.
(3)
Any party may request the municipality to appoint one or more persons
in terms of subsections (1) and (2), for the purposes
of those
subsections.”
[57]
In the
Sailing Queen Investments
-judgment,
supra,
para [14], the following was stated regarding a Municipality`s
obligation to become involved in mediation:
[14]
…Furthermore, section 7(1) of PIE enjoins the municipality to
apply its mind to mediation in an endeavour to resolve
a dispute when
receiving a section 4(2) notice whether the application fell under
section 4(6) or 4(7) of PIE. It would simply
be untenable to
contemplate that a municipality served with a notice in terms of
section 4(2) of PIE, would be under no obligation
to
react to
such a notice in any manner whatsoever.
[58]
In
Occupiers of 51 Olivia Road, Berea Township, and 197
Main Street, Johannesburg v City of Johannesburg and Others
[2008] ZACC 1
;
2008 (3) SA 208
(CC) the Constitutional Court dealt with the
aforesaid mediation aspect in detail. The following are the main
principles expressed
by the Court:
[13]
It became evident during argument that the city had made no effort at
all to engage with the occupiers at any time before proceedings
for
their eviction were brought. Yet the city must have been aware of the
possibility, even the probability, that people would
become homeless
as a direct result of their eviction at its instance. In these
circumstances those involved in the management of
the municipality
ought at the very least to have engaged meaningfully with the
occupiers both individually and collectively.
[14]
Engagement is a two-way process in which the city and those about to
become homeless would talk to each other meaningfully
in order to
achieve certain objectives. …
[15]
Engagement has the potential to contribute towards the resolution of
disputes and to increased understanding and sympathetic
care if both
sides are willing to participate in the process. People about to be
evicted may be so vulnerable that they may not
be able to understand
the importance of engagement and may refuse to take part in the
process. If this happens, a municipality
cannot walk away without
more. It must make reasonable efforts to engage and it is only if
these reasonable efforts fail that a
municipality may proceed without
appropriate engagement. …
[16] …In the light
of these constitutional provisions a municipality that ejects people
from their homes without first meaningfully
engaging with them acts
in a manner that is broadly at odds with the spirit and purpose of
the constitutional obligations set out
in this paragraph taken
together.
[17]
…
[18]
And, what is more, s 26(2) mandates that the response of any
municipality to potentially homeless people with whom it engages
must
also be reasonable. It may in some circumstances be reasonable to
make permanent housing available and, in others, to provide
no
housing at all. The possibilities between these extremes are almost
endless. It must not be forgotten that the city cannot be
expected to
make provision for housing beyond the extent to which available
resources allow. As long as the response of the municipality
in the
engagement process is reasonable, that response complies with s
26(2). …”
[59]
Mr Mohkele, appearing on behalf of the respondents, submitted that
the applicant failed to make out a proper case that it will
be just
and equitable that an eviction order be granted. In this regard he
contended that the applicant did not properly deal with
the issue of
the availability of suitable alternative housing. He furthermore
submitted that the Municipality failed to properly
mediate the
dispute between the parties in an endeavour to resolve the dispute.
Mr Mokhele pointed out that the report attached
to the founding
affidavit as annexure “E” is dated 12 March 2013, hence
even before the previous unsuccessful application.
He submitted that
it is evident from the said report that subsequent meetings were to
be held, but no feedback was provided to
the Court.
[60]
Mr Lubbe, appearing on behalf of the applicant, accentuated the fact
that not only is the Municipality offering temporary accommodation

free of charge for a month in a different block of flats in the same
development as set out in its replying affidavit, but it is
also
offering assistance with the relocation of those respondents that are
earning less than R 3500.00 per month and more than
R 7500.00. In
addition he indicated that he has instructions that the Municipality
is offering temporary accommodation on the same
premises pending the
finalization of the project to those respondents who qualify to
eventually be accommodated in the new units.
Those respondents will
in the meantime be granted the opportunity to apply for such
accommodation.
[61]
I will now deal with facts and circumstances which are in my view
relevant to consider in the current application in deciding
whether
an eviction order is just and equitable.
[62]
It is firstly important to take cognisance of the fact that it is
evident from their lease agreements that the respondents`
initial
occupation of the units were already based upon an approved housing
scheme in Brandwag (clause 2.2 of the lease agreements)
and which
occupation were then already made subject to the applicable Housing
Legislation (clause 2.3 of the lease agreements).
The amount of their
monthly rentals is based on their monthly income (clause 5.6 of the
lease agreements) and therefore the concomitant
commitment in the
same clause to immediately advice the Municipality of any change in
their income. The existence and applicability
of a housing scheme
have therefore been to the knowledge of the respondents from the
commencement of their lease periods and could
therefore not have now
taken them by surprise.
[63]
The applicant has a contractual duty to perform the construction of
housing units and accommodation in accordance with the
notarial lease
it concluded with the Municipality. The applicant is not the owner of
the land and is therefore not in a position
to merely decide not to
continue with the development.
[64]
Right at the outset when the Municipality resolved on 11 August 2011
to implement the current Brandwag Project, specific resolutions
were
then already taken regarding measures to relocate the tenants who do
not qualify for the scheme. Specified erven were identified
and
allocated for this purpose. The said resolutions are contained in
annexure “G” to the founding affidavit.
[65]
It is evident from the report, annexure “E”, that options
regarding alternative accommodation were in fact discussed
with the
tenants from the outset during March 2013 already. Although it is
correct that no follow-up to that report was provided
to the Court,
it is evident from correspondence attached to the answering
affidavits of some of the respondents that the consultation
process
has in fact continued throughout 2014 and at least until February
2015 (p. 730 – p. 734 of the papers).
[66]
This application has served before Court on numerous occasions and
before different Judges. On some of those occasions the
matter was
only postponed to grant some of the respondents a further opportunity
to oppose the application. However, on 8 October
2015 my colleague,
Daffue J, issued an order of eviction against some of the respondents
who did not oppose the application. On
19 November 2015 my colleague,
Ebrahim J, granted an eviction order by agreement between three of
the respondents and the Municipality,
but in terms of which order
agreements were concluded regarding temporary alternative
accommodation as offered by the Municipality.
A number of the
respondents cited in this application have therefore already been
evicted. The applicant also alleges in its founding
affidavit that
other illegal tenants have also previously already been evicted from
the property under case numbers 3065/2014 and
2316/2014. The
respondents who are currently opposing this application are therefore
the only remaining tenants of a bigger group
of initial tenants.
[67]
Although many of the respondents have been occupying their units for
quite a number of years already, they have been aware
of the
implementation of the current housing scheme and the necessity for
their relocation should they not qualify for it, since
2013 already.
It has now also been approximately 16 months since they received the
cancellation notices and they have been in illegal
occupation of the
units since then. During this period of time many have been living
free of charge as they have not been paying
their monthly rentals and
their electricity accounts. It is evident from annexure “F”
to the founding affidavit that
at 17 August 2015 the illegal tenants
at the time, which included the respondents, had a combined
outstanding rental and electricity
bill of R 2 576 744.73.
[68]
The enormous negative financial implications for the Brandwag Project
and for the applicant as a result of the respondents`
refusal to
vacate their units are also evident from annexure “F”. In
addition it can cause the impossibility to later
continue with the
next phase of the Project. The successful and effective
implementation of Social Housing Schemes is in the interest
of
society as a whole. In this instance the respondents’ conduct
cause severe prejudice to people who do qualify for social
subsidies
but who cannot be accommodated due to the respondents’ illegal
occupation of the units.
[69]
Although there are a number of pensioners, elderly people, women and
children who will be affected by an eviction order, I
am of the view
that in the particular circumstances of this matter they have had
ample opportunity to make alternative arrangements
for accommodation,
either by themselves or in conjunction with the relocation
initiatives of the Municipality. The respondents
cannot in the
circumstances be categorised as people that will be “homeless”.
[70]
In the circumstances and when taking into account the interest of all
relevant stakeholders, I am of the view that it is just
and equitable
to evict the respondents.
Date
of eviction:
[
71]
In terms of sections 4(8) and 4(9) of PIE the following need to be
considered:
“
4(8)
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated

in paragraph
(a)
.
4(9)
In determining a just and equitable date contemplated in subsection
(8), the court must have regard to all relevant factors,
including
the period the unlawful occupier and his or her family have resided
on the land in question.”
[72]
It is evident from the answering affidavits that many of the
respondents have children at school nearby Brandwag. I do not

consider it just and equitable that such children should be involved
in any relocation process, either with regards to their household
or
to their schools, before the winter school holidays. I therefore
intend to determine a date on which the units have to be vacated
only
after the close of schools for the holidays.
[73]
I have already mentioned that some of the respondents have been
residing in the units for a long period of time. I do take
that into
account in my determination of a date. However, as I have also
concluded, the respondents have known about their potential

relocation for a long time already and could have started with the
necessary arrangements in the meantime.
[74]
Considering Mr Lubbe`s instructions that the applicant will enable
the respondents to in the meantime apply for new accommodation
within
the Brandwag Project, I deem it necessary to make certain orders in
this regard to make the process practically more feasible
for the
respondents. It is in my view also in the interest of the respondents
to be advised as soon as possible whether they do
qualify for
accommodation in the Brandwag Project, or not. In
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre,
Amici
Curiae
);
President of the Republic of South
Africa and Others v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre,
Amici Curiae
)
2004 (6) SA 40
(SCA) the following principles were stated regarding a
Court`s obligation to provide effective relief:
“
[42]
Courts should not be overawed by practical problems. They should
'attempt to synchronise the real world with the ideal construct
of a
constitutional world' and they have a duty to mould an order that
will provide effective relief to those affected by a constitutional

breach.
Fose v Minister of Safety and Security
held that -
'
(a)
ppropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or such other relief as may be required
to ensure that the rights enshrined in the Constitution are protected
and enforced. If
it is necessary to do so, the courts may even have
to fashion new remedies to secure the protection and enforcement of
these all-important
rights.' (In para [19].)
'I
have no doubt that this Court has a particular duty to ensure that,
within the bounds of the Constitution, effective relief be
granted
for the infringement of any of the rights entrenched in it. In our
context an appropriate remedy must mean an effective
remedy, for
without effective remedies for breach, the values underlying and the
right entrenched in the Constitution cannot properly
be upheld or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is
essential that on
those occasions when the legal process does establish that an
infringement of an entrenched right has occurred,
it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to ''forge new tools''
and shape innovative
remedies, if needs be, to achieve this goal.' (In para [69].)
[43]
What 'effective relief' entails will obviously differ from case to
case.”
[75]
Should a respondent qualify for accommodation in the new Brandwag
Project, it means that he/she would also (still) have qualified
for
accommodation in his/her current unit had it not been for the
Project.  In these circumstances I consider it just and

equitable that the alternative accommodation which the Municipality
is offering on the same premises pending the finalization of
the
Project, should be provided free of charge in so far as rental is
concerned.
[76]
Taking all the relevant circumstances into consideration, I consider
it just and equitable that the respondents should vacate
the property
by 30 June 2016.
Costs:
[77]
Regarding the costs of the application, I do not consider the usual
order that costs follow the outcome as appropriate in the

circumstances of this matter. I have already mentioned that the
respondents were initially provided with their current accommodation

in terms of a Housing Scheme which was clearly intended to subsidise
their accommodation because of their relatively low income.
Although
allegations are now being made regarding the respondents` alleged
failure to pay rental and/or that they do not qualify
in terms of the
scheme and/or that they refuse to verify their particulars, these are
not the operative reasons for the cancellation
of their lease
agreements. The implementation of the Brandwag Project is the sole
and actual reason for the termination of their
leases. The
respondents can therefore not be faulted for the fact that they have
to evacuate their units. Such evacuations and
relocations are
obviously coupled with huge financial, emotional and other similar
distresses. In these circumstances and where
the project which is the
cause of the situation in which the respondents find themselves in,
is in public interest, but to the
detriment of the respondents, I, in
the exercising of my discretion, consider it in the interest of
justice that the applicant
be ordered to pay the costs of the
application, including all reserved costs, but excluding the reserved
costs of 10 December 2015.
[78]
The costs of 10 December 2015 were reserved when the application had
to be postponed due to the sudden and unforeseen hospitalization
of
the respondents` attorney of record. In those circumstances the
applicant cannot be penalised with the wasted costs of the
respondents. However, for the reasons already recorded, I am of the
view that the respondents ought not to pay any of the costs
of the
applicant. In the circumstances I deem the appropriate order that
each party should pay its own costs. Regarding any possible
costs on
the side of the respondents for that day, their attorney of record
will however not be entitled to claim any such costs
from the
respondents.
Order:
[79]
The following order is consequently made:
1.
The remaining respondents and any persons occupying through them the
property known as the Brandwag Project Phase 2, hence the
respondents
and persons who have not already agreed to vacate and/or been evicted
in terms of the court orders dated 8 October
2015 and 19 November
2015 respectively, are evicted from the property.  These
remaining respondents are the following:
3
rd
,
9
th
, 11
th
, 12
th
, 14
th
,
15
th
, 16
th
, 17
th
, 18
th
,
21
st
, 25
th
, 31
st
, 32
nd
,
34
th
, 35
th
, 36
th
, 37
th
,
38
th
, 40
th
, 41
st
, 42
nd
,
43
rd
, 44
th
, 51
st
, 52
nd
,
53
rd
, 54
th
, 56
th
, 57
th
,
61
st
, 62
nd
, 64
th
, 65
th
,
66
th
, 67
th
68
th
, 69
th
,
70
th
, 71
st
, 75
th
, 79
th
,
85
th
, 90
th
, 91
st
, 92
nd
,
93
rd
, 95
th
, 97
th
and 98
th
.
2.
The aforesaid respondents, and any persons occupying through them,
must vacate the property by 30 June 2016, failing which the
Sheriff
and/or persons mandated by the said Sheriff, are authorised to evict
such respondents and persons still occupying the property.
3.
The Sheriff is further authorised, if required, to call in the
assistance of the SAPS.
4.
Those respondents who qualify for housing in the Brandwag Housing
Project may apply in writing to the applicant for such accommodation

on or before 11 May 2016 and all such applications must be considered
and finalised by the applicant, and the outcome thereof communicated

to the relevant respondents, on or before 26 May 2016.
5.
The applicant is ordered to provide alternative accommodation on the
same premises free of charge to those respondents that do
qualify
pending their relocation to the refurbished/new units/flats. Such
respondents will however be responsible for payment of
the water and
electricity usage pending their said relocation.
6.
The applicant is ordered to pay the costs of the application,
including all reserved costs, but excluding the reserved costs
of
10/12/2015, which costs each party is to pay its own. Regarding the
wasted costs of 10/12/2015, the respondents’ attorney
of record
is not entitled to claim any of those costs from the relevant
respondents. Considering previous costs orders made against
the
respondents in this application, the aforesaid costs of the
application to be paid by the applicant, are to be restricted to
the
pro rata costs of the respondents mentioned in paragraph 1 above.
7.
The applicant is ordered to forthwith serve this order on the
respondents mentioned in paragraph 1 above, personally or by affixing

a copy of the order on the door of the premises occupied. The said
order is to be accompanied by an application form for purposes
of
applying for the accommodation referred to in paragraph 4 above,
which documentation should also reflect the full contact details
and
address of the applicant.
_____________
C.
VAN ZYL, J
On
behalf of the Applicant:

Adv. J. Lubbe SC
On instructions of:
Maroka Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
….
Mr L.M. Mokhele
On instructions of:
L.M.
Mokhele Attorneys Inc.
BLOEMFONTEIN