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[2016] ZAKZDHC 30
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Mahogany Ridge 2 Property Owners Association v Unlawful Occupiers of Lot Pinetown and Others (2673/20114) [2016] ZAKZDHC 30 (15 February 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO.
2673/20114
DATE: 15 FEBRUARY
2016
MAHOGANY
RIDGE 2 PROPERTY OWNERS’
ASSOCIATION
...................................
Applicant
And
THE
UNLAWFUL OCCUPIERS OF LOT [....]
PINETOWN
................................
First
Respondent
ETHEKWINI
MUNICIPALITY
............................................................................
Second
Respondent
MR
MTSHALI
............................................................................................................
Third
Respondent
MR
BONGANI
KHUMALO
...................................................................................
Fourth
Respondent
MR
NATHI
NDLULI
...................................................................................................
Fifth
Respondent
MR
SEMZO
WANDA
.................................................................................................
Sixth
Respondent
MR
DOUGLAS
KHUMALO
.................................................................................
Seventh
Respondent
JUDGMENT
Delivered
on 15
th
February
2016
CHETTY,
J
[1]
On 7 November 2012 Sishi J handed down judgment in favour of the
applicant, which sought the eviction of the first, third, fourth,
fifth, sixth and seventh respondents from its property, being Erf
[....] Pinetown. The second respondent, the Ethekwini Municipality,
was cited in the proceedings to the extent that it has a
constitutional and statutory duty to provide emergency shelter and
alternative
housing to families rendered homeless as a result of an
eviction.
[2]
After hearing argument in respect of the eviction application under
the Prevention of Illegal Eviction from and Unlawful Occupation
of
Land Act 19 of 1998 ('PIE') Sishi J issued an Order in the following
terms:
‘
(1)
All persons presently occupying Erf [....] Pinetown (hereinafter
referred to as "the first respondent) are Ordered in terms
of
section 4(1) of the Prevention of illegal Eviction from and Unlawful
Occupation of Land Act 1998 to vacate Erf [....] Pinetown
(‘the
property1’).
(2)
The persons referred to in paragraph 1 above are Ordered to vacate
the said property by 22 February 2013.
(3) The second
respondent (municipality) is Ordered and directed to erect and
construct the wood and corrugated iron structures
situated upon
concrete platforms in the located sites owned by the second
respondent at Emaus area, as contemplated in their housing
report
dated 4 April 2012 to relocate and house the Unlawful Occupiers
currently occupying the applicant's property.
(4) The second
respondent is given a period of three months from the date of this
judgment within which to erect and complete the
structures referred
to in the preceding paragraph. The erection and construction of these
structures shall be finalised on or before
7 February 2013.
(5) In the event
that the Unlawful Occupiers do not vacate the property in accordance
with the provisions of paragraph 2 hereof,
then, two (2) days
following the day referred to in para 2 thereof, being 25 February
2013, the sheriff is authorised to evict
any such persons remaining
in occupation of the property and is further authorised to employ any
necessary force in Order to give
effect to this Order.
(6) The second
respondent is Ordered to pay the wasted costs occasioned by the
adjournments on 25 November 2011, 20 January 2012
and 04 April 2012.
(7) Save for the
costs Orders in the preceding paragraph, the first respondent is
Ordered to pay the costs of this application,
jointly and severally,
the one paying, the others to be absolved.’
[3]
The issue which is now before me is whether the second respondent
should be held in contempt, as to date it has failed to implement
the
Order.
[1]
It
is not in dispute that none of the structures referred to in the
Order have been constructed. To that end, the applicant contends
that
the city manager be called upon to show cause why an Order should not
be made committing him to prison and to remain imprisoned
until the
Order is complied with. In addition, the applicant, in its replying
affidavit and heads of argument, seek damages in
the amount of R
76,846.00 per month, from the date of the granting of the Order until
the date when the unlawful occupiers vacate
its property.
[4]
In response to the application to hold the city manager in contempt,
the municipality on 10 February 2015 delivered a counter
application
for the variation of the Order granted on 7 November 2012. While it
is correct that the unlawful occupiers sought to
appeal the judgment
of Sishi J, as at 24 February 2014 their attorneys had conveyed to
the municipality’s attorneys that
they were no longer
persisting with the appeal. The application for leave to appeal was
eventually withdrawn on 6 June 2014.
Even if the municipality
contends that it was unable to comply with the Order while the appeal
by the unlawful occupiers was still
being prosecuted, as at 6 June
2014, that excuse fell away.
[5]
The essence of the variation application is that information has
subsequently come to light which indicates that if the unlawful
occupiers were to be the relocated to Emaus, in accordance with the
Order, such relocation would be met with violent opposition
by the
community of Emaus. As an alternative, the municipality submits that
the unlawful occupiers be relocated to land in the
nearby Motala
Heights community, which is closer to public transport, as well being
serviced with ablution facilities. The problem
which emerges in this
matter is that the unlawful occupiers insist that the municipality
relocate them to Emaus, the site referred
to in the Order. They
resist any attempt to relocate them to Motala Heights, whose existing
residents the occupiers contend, would
oppose their relocation on the
grounds that they will essentially be occupying land earmarked for
low cost housing development
for members of that community.
[6]
The applicants, unfortunately, are saddled with the unlawful
occupation of their land, despite a court Order for the eviction
of
the unlawful occupants having been handed down more than three years
ago. As set out in its application papers, the applicant
has become
exasperated by the failure of the municipality to comply with the
Order, and has in the intervening three years spent
R1 608 211,
03 in providing security on the site to prevent further unlawful
occupation of the land, and to regulate
the influx and egress of
persons already occupying the site.
[7]
The applicant further set out details of the threats to the security
guards on the site, and that it has taken steps to put
in place
perimeter fencing and erect guard houses to protect its property from
becoming a further target for illegal land occupation.
In addition,
the security officers on site have been threatened, intimidated and
harassed when attempting to confront illegal invasions,
and the
security fencing erected has been vandalised at certain parts. The
ablution facilities for the security guards have also
been stolen and
burnt. The guards have also been threatened with weapons while
attempting to prevent illegal invasion of the property.
According
to the applicant, no assistance has been obtained from the South
African Police Services, on the basis that this
is supposedly a
private land dispute.
[8]
The applicant therefore has not brought the application lightly. It
is of the view that the municipality is under a duty in
law to comply
with the orders of Courts, and to that extent no justifiable
explanation exists for the non-compliance with the Order.
Consequently, it submits that the municipality should be held in
contempt and that its municipal manager should be called upon
to
explain why he should not be committed to prison until such time as
there has been compliance with the Order. Insofar
as the
applicant is concerned, it has done all that could be asked of it.
The obligation to accommodate the unlawful occupiers
does not fall on
the private landowner. However as the Constitutional Court held in
City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties
39 (Pty) Ltd & another
,
[2]
para
40 and
Occupiers
of Mooiplaats v Golden Thread Ltd & others
[3]
what
is needed is patience in these situations. In
Blue
Moonlight
para
40 the Court held:
‘
Of
course, a property owner cannot be expected to provide free housing
for the homeless on its property for an indefinite period.
But in
certain circumstances an owner may have to be somewhat patient, and
accept that the right to occupation may be temporarily
restricted
.... An owner's right to use and enjoy property at common law can be
limited in the process of the justice and equity
enquiry mandated by
PIE’.
As
I understood the applicant’s case, it has been patient for more
than three years with the municipality and has come to
Court after
all else has failed.
[9]
It is against this backdrop that this Court must assess whether the
variation application of the municipality has any merit.
The
structures contemplated in the Order require the fairly simple
construction of concrete platforms and wooden structures erected
thereon. Mr
Broster
who appeared for the municipality,
pointed out that the municipality was committed to erecting
structures which would give the
unlawful occupiers a degree of
permanence in respect of housing. On the other hand, this could only
become a reality at the Motala
Heights site, and not at Emaus, to
where the court had ordered their relocation. The municipality
further contended that if the
unlawful occupiers were relocated to
Emaus, and threats of violence are carried out against them by
disgruntled members of that
community, the structures erected in
terms of the Order could be razed to the ground. In that event,
all that the municipality
would then be able to offer would be
emergency housing, a far cry from the structures contemplated in the
Order.
[10]
It is necessary to make a few preliminary remarks in relation to the
judgment of 7 November 2012 before dealing with the variation
application brought by the municipality. Mr
Jeffrey SC
,
who appeared for the unlawful occupiers, correctly pointed out that
in the absence of ‘fresh facts’, Courts are
understandably
reluctant to grant variations of their Orders.
In
Bell v Bell
1908 TS 887
, Innes CJ at 894 held that:
‘
Courts
will not lightly vary their own Orders, even though they may be of a
merely interlocutory character. And the cases
in which such
orders will be altered in the absence of fresh facts cannot be
numerous’.
[11]
The municipality obviously contends that “fresh facts”
have indeed surfaced since the date of the Order.
Notwithstanding, the Order remains in force until set aside. As
set out in
Erasmus, Superior Court
Practice,
Rule-B1 at 306F-G:
‘
An order of a
court of law stands until set aside by a court of competent
jurisdiction. Until that is done, the court order
must be
obeyed even if it may be wrong; there is a presumption that the
judgment is correct. A person may even be barred
from
approaching the court until he or she has obeyed an order of court
that has not been properly set aside. An order could
only be
set aside under rule 42, rule 31(2)(
b)
, on appeal or on
common-law grounds.
The
general well-established rule is that once a court has duly
pronounced a final judgment or order, it has itself no authority
to
correct, alter or supplement it-it becomes
functus
officio
. The inherent
jurisdiction of the High Courts does not include the right to
interfere with the principle of finality of judgments,
other than in
the circumstances specifically provided for in the rules or the
common law.’
[12]
Similarly, in
Mchunu
& others v Executive Mayor, Ethekwini Municipality &
others,
[4]
Hollis AJ was called upon to consider a contempt application against
the municipality which had failed to find alternative accommodation
for occupiers who had been evicted from an informal settlement and
relocated to a transit camp for more than a year. As part of
the
programme to oversee the relocation of the occupiers, the Court
ordered the municipality to investigate the misallocation of
housing
and further directed that the occupiers were not to remain in the
transit camps or more than a year. Notwithstanding, the
occupiers
remained in the transit camp for more than 22 months, and eventually
an application was brought to hold the municipal
manager in contempt
of the earlier Court order. In dealing with an assertion that the
earlier Order directing the municipality
to comply with certain
conditions was a nullity the Court, relying on the decision in
Culverwell
v Beira
,
[5]
noted that orders of Court, whether correctly or incorrectly granted,
have to be obeyed until they are properly set aside.
[6]
[13]
It should be noted that apart from the particular site to
which the court directed that the occupiers
be
re
located, the municipality does not challenge any other
aspect of the judgment of
Sishi J. That
being the case, the reasoning of Sishi J remains intact. It is
relevant to note that in reaching his decision,
Sishi J took into
account the housing report delivered by the municipality and that an
offer had been extended to the occupiers
to relocate them
to
Emaus, adjacent to the area where the
y
are
presently located. The court further took into account that the
proposal had been made by the municipality to construct concrete
platforms, on which wo
oden
structures would
be
put up.
At the time when the
matter had been argued, they had been no opposition to the proposal
by the
community of Emaus
. A further
feature of the proposal was that the applicant
(the
landowner) had offered an amount of R 10 000 in respect of the
relocation of each family. This was, in my view, a generous
offer by
a landowner whose property had been unlawfully occupied, and whose
members had paid significant amounts for security since
November
2011, when the property was illegally occupied.
[14]
The housing report by the municipality further indicated that a
period of three months would be required from the granting
of
the Order for the construction of the structures to which the seven
families were to be relocated. Accordingly, after considering
the
merits of the application, the Court ordered the eviction of the
unlawful occupiers and as set out above, ordered their relocation
to
the area of Emaus, in accordance with the municipality’s
housing report. What the municipality now seeks to do in
its
variation application is to alter the conclusion arrived at in its
own housing report.
[15]
The variation application asserts that in attempting to ensure
compliance with the Order the municipality encountered “
significant
resistance
”
from the local
community of Emaus and was accordingly unable to comply with the
construction of temporary housing. The affidavit
of Mr Dumisane
Petros Ndlovu, the Manager of the Housing Department in the
municipality, states that a meeting was called to discuss
the
relocation of the unlawful occupiers to the sites in Emaus. No
details are given as to when this meeting took place except
that
members of the local community in Emaus refused to agree to the
relocation as they wanted priority to be accorded to their
existing
members who had long been in the queue to receive proper housing.
[16]
As a result of the fear that any structures erected by the
municipality would be damaged or destroyed, the municipality
undertook
to then look at alternative sites. This led to the
identification of Motala Heights as a suitable location. This site
was described
as being “
sufficiently
far away so as not to cause difficulties with the local community
”
.
The municipality further states that a meeting with the
representatives of the unlawful occupiers as well as the members of
the
community from Motala Heights was held wherein it was apparently
agreed to by the unlawful occupiers, that they would have no
objection
to relocating to Motala Heights. The latter contention that
the unlawful occupiers had either attended the meeting or that they
were in agreement with the revised relocation offer was strenuously
disputed by the unlawful occupiers.
[17]
Accordingly the municipality contends that it remains respectful of
the Order and in an attempt to comply with its constitutional
obligations, it identified a suitable alternative site for housing,
which in no way prejudices the occupiers, and seeks to give
content
to the rights of access to housing as set out in s 26 of the
Constitution. This, it argues, amounts to “substantial
compliance” with the Order. The municipality was at pains to
point out that it had actively been taking steps to comply with
the
Order, and that its primary reason for a change of location was due
to the threats made by the local community.
[18]
The variation application was opposed by the applicant, which pointed
to a delay of more than a year in the municipality bringing
the
application. According to the applicant, the municipality’s
attorneys would have known since 24 February 2014 that
there was the
potential for problems associated with the relocation of the
occupiers to the site at Emaus. Despite this,
there is no
explanation as to why the application for variation was only
delivered on 15 February 2015. That delay apart,
the
applicant’s counsel submitted that a delay of more than a 1000
days had elapsed since the Order of 7 November 2012 and
the applicant
still does not have undisturbed possession of its property. In
the interim, it has continued to bear the costs
of security guards
and patrolling of the area, costing an average of R76 848, 00 per
month, which it has no realistic prospect
of recovering from the
occupiers.
This
aspect of the claim for damages is dealt with later in this judgment.
[19]
The variation application was also opposed on the grounds that there
are no exceptional circumstances set out by the municipality
to
justify a departure from the Order made by Sishi J, particularly as
the Order endorsed a proposal put forward by the municipality
itself. It is almost akin to a party agreeing to an order by
consent, only to return later to Court and argue for a rescission.
[20]
At the time when the housing report was placed before Sishi J, the
municipality was aware that both the sites at Emaus and
Motala
Heights would have already been occupied by communities. No
explanation is tendered as to why these threats against
the
relocation of the unlawful occupiers did not surface at the time when
the housing report was being prepared.
[21]
The most compelling reason why the variation application should be
dismissed, according to the applicant, is that despite resistance,
the unlawful occupiers are in favour of relocating to the land
allocated at Emaus. Their choice was based upon the acceptance of
an
offer made by the municipality, and subsequently endorsed by the
Court in its judgment of 7 November 2012.
[22]
The unlawful occupiers joined forces with the applicant in opposing
the variation application and point to the dispute of fact
that
arises from the affidavit of Dhanasagree (Shamitha) Naidoo on behalf
of the Motala Heights Community Committee, who states
that if the
unlawful occupiers are relocated to Motala Heights, that would result
in strife for those in that community who are
waiting patiently for
the allocation of houses. Should the unlawful occupiers be moved onto
this land, they may be perceived as
receiving preferential treatment
to those who have been waiting for some time for the allocation of
houses. Ms Naidoo suggests
that if such relocation is to take
place, “
conflict will erupt,
workers will be attacked, equipment destroyed and any structures will
be broken down
”
. She makes
it clear in her affidavit that the unlawful occupiers will not be
accepted by the Motala Heights community.
[23]
To the extent that there is a dispute of fact between the version of
the municipality and that of the unlawful occupants, relying
on the
test
in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[7]
read
with
Wightman
t/a JW Construction v Headfour (Pty) Ltd & another
[8]
the
occupiers submit that their version must be accepted.
[24]
While I am mindful of the information presented by the municipality
of the possibility of resistance by the Emaus community
to the
relocation of the unlawful occupiers to their area, this court cannot
allow a climate to develop where implementation of
its Orders are
second guessed or resisted by members of the public. As stated
earlier, the judgment of Sishi J has not been
reviewed or set aside
and therefore must stand. Disobedience of court orders cannot
be countenanced, especially where it
results in the most destitute in
our society being deprived of the benefit of a constitutional right
to have adequate shelter provided
by an organ of state. In
addition, resistance to the implementation of court orders has the
potential to erode the dignity
and authority of the courts, and
serves to undermine the rule of law.
[25]
In the result, I am satisfied that no grounds exist for the variation
of the Order issued by Sishi J on 7 November 2012.
The
counter-application of the municipality is accordingly dismissed.
[26]
I now turn to the issue of whether the municipality has been in
contempt of the Order issued by Sishi J. The test for
whether
the municipality has acted in contempt is set out in
Fakie
NO v CCII Systems (Pty) Ltd
[9]
where
Cameron JA said the following:
‘
[7]
The form of proceeding CCII invoked appears to have been received
into South African law from English law and is a most
valuable
mechanism. It permits a private litigant who has obtained a court
order requiring an opponent to do or not do something
(
ad
factum praestandum
), to approach the
court again, in the event of non-compliance, for a further order
declaring the non-compliant party in contempt
of court, and imposing
a sanction. The sanction usually, though not invariably, has the
object of inducing the non-complier
to fulfil the terms of the
previous Order.
[8]
In the hands of a private party, the application for committal
for contempt is a peculiar amalgam, for it is a civil proceeding
that
invokes a criminal sanction or its threat. And while the litigant
seeking enforcement has a manifest private interest in securing
compliance, the court grants enforcement also because of the broader
public interest in obedience to its orders, since disregard
sullies
the authority of the courts and detracts from the rule of law.
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
'deliberately and
mala fide
'. A deliberate disregard is not
enough, since the non-complier may genuinely, albeit mistakenly,
believe him or herself entitled
to act in the way claimed to
constitute the contempt. In such a case, good faith avoids the
infraction. Even a refusal to
comply that is objectively unreasonable
may be
bona fide
(though unreasonableness could evidence lack
of good faith).
[10]
These requirements - that the refusal to obey should be both wilful
and
mala
fide
, and
that unreasonable non-compliance, provided it is
bona
fide
, does
not constitute contempt - accord with the broader definition of the
crime, of which non-compliance with civil orders is a
manifestation.
They show that the offence is committed not by mere disregard of a
court order, but by the deliberate and intentional violation
of
the court's dignity, repute or authority that this evinces. Honest
belief that non-compliance is justified or proper is incompatible
with that intent.’
(Footnotes
omitted)
[27]
The municipality appears to have been careful to bring itself within
the framework of the decision in
Fakie
. As I understand
its contentions regarding the aspect of contempt, the municipality
states that it is striving to provide
suitable alternative
accommodation to cater for the influx of thousands of people into the
urban area that falls within its jurisdiction
– particularly
those living on, what the municipality calls, the “
fringes
of society
”.
[28]
In response to the allegation of contempt, the municipality states
that it held meetings, through the ward councillor and housing
officials, with the community at Emaus who were opposed to the
relocation of the unlawful occupiers to their area. It then
investigated the possibility of relocating the unlawful occupiers to
Motala Heights and to this end held meetings with the community
who
expressed no opposition to the unlawful occupiers being housed on
that site. As set out earlier, the version that the
Motala
Heights community would welcome the unlawful occupiers into their
fold is strenuously disputed by the unlawful occupiers.
[29]
Notwithstanding my conclusion that the municipality’s efforts
to seek a variation of the Order cannot succeed, there
is nothing on
the papers before me to suggest that the municipality has acted in
wilful disregard of the Court’s Order.
The municipality
appears to have believed that it was acting in the best interests of
the unlawful occupiers by seeking their resettlement
to Motala
Heights. It was clearly mistaken in that belief, as evidenced
by the affidavit of Ms Naidoo on behalf of the Motala
Heights
Community Committee. The unlawful occupiers themselves do not
wish to go to Motala Heights and are quite content,
despite the
threats against their safety, to be relocated to Emaus. Can it
be said that the municipality’s conduct
has been in wilful
disobedience of the Court? As Cameron JA pointed out in
Fakie
supra para 9, “
good
faith avoids the infraction
”
.
[30]
The test for contempt received the attention of the Constitutional
Court in
Pheko
& others v Ekurhuleni City
[10]
where
Nkabinde J said the following:
‘
[28]
Contempt of court is understood as the commission of any act
or statement that displays disrespect for the authority of
the
court or its officers acting in an official capacity. This includes
acts of contumacy in both senses: wilful disobedience and
resistance
to lawful court orders. This case deals with the latter, a failure or
refusal to comply with an order of court. Wilful
disobedience of an
order made in civil proceedings is both contemptuous and a
criminal offence. The object of contempt proceedings
is to impose a
penalty that will vindicate the court's honour, consequent upon the
disregard of its previous order, as well as
to compel performance in
accordance with the previous order.
…
[30]
The term civil contempt is a form of contempt outside of the court,
and is used to refer to contempt by disobeying a court
order. Civil
contempt is a crime, and if all of the elements of criminal
contempt are satisfied, civil contempt can be prosecuted
in criminal
proceedings, which characteristically lead to committal. Committal
for civil contempt can, however, also be ordered
in civil proceedings
for punitive or coercive reasons. Civil contempt proceedings are
typically brought by a disgruntled litigant
aiming to compel another
litigant to comply with the previous order granted in its favour.
However, under the discretion of the
presiding officer, when contempt
occurs a court may initiate contempt proceedings mero motu.
[31]
Coercive contempt orders call for compliance with the original order
that has been breached, as well as the terms of the subsequent
contempt order. A contemnor may avoid the imposition of a sentence by
complying with a coercive order. By contrast, punitive orders
aim to
punish the contemnor by imposing a sentence which is unavoidable. At
its origin the crime being denounced is the crime of
disrespecting
the court, and ultimately the rule of law.’ (Footnotes omitted)
[31]
The Court in
Pheko
intimidated in para 37 that resort to means other
than contempt proceedings may be had in dealing with a recalcitrant
litigant.
The Court said the following:
‘
However,
where a court finds a recalcitrant litigant to be possessed of malice
on balance, civil contempt remedies other than committal
may still be
employed. These include any remedy that would ensure compliance, such
as declaratory relief, a mandamus demanding
the contemnor behave in a
particular manner, a fine and any further order that would have the
effect of coercing compliance.
’
[32]
After careful consideration of the history of the matter and the
municipality’s failure to comply with the Order of this
Court,
I am not satisfied that, on a balance of probabilities, the applicant
has succeeded in surpassing the threshold to show
that the
municipality’s conduct was in wilful disobedience of the Court
Order. As the Constitutional Court in
Pheko
para 42 held:
‘
While
courts do not countenance disobedience of judicial authority, it
needs to be stressed that contempt of court does not consist
of mere
disobedience of a court order, but of the contumacious disrespect for
judicial authority.’
[33]
I accordingly dismiss the application for contempt.
[34]
I now turn to the applicant’s claim for damages. Mr
Boulle
submitted that notwithstanding the Notice of
Motion containing no prayer for damages, as a result of the continued
occupation of
its property by the unlawful occupiers and owing to the
failure of the municipality to comply with this Court’s Order,
I
should grant an Order holding the municipality liable for the
on-going costs associated with the provision of security services
at
the site where the unlawful occupiers presently reside. As
stated earlier, these costs to date exceed R1,6 million.
I
agree with counsel that in the absence of an Order for contempt, a
sanction (such as an award of damages) would probably be sufficient
to accelerate a positive response from municipal officials.
[35]
The question that arises is whether a law-abiding landowner should
indefinitely continue to pay for the costs of maintaining
some degree
of order on its property by providing security services without any
prospect of recovery from the occupiers, or for
that matter, from the
municipality who are primarily responsible for the delay in the
relocation? I am of the view,
albeit
obiter
,
that in the absence of such costs ultimately not being borne by the
municipality, the latter could continue to drag its feet in
complying
with the Order of this Court, without any repercussion for its
recalcitrance. Mr
Boulle
urged
me to be “creative” and grant relief to the applicant’s
for the damages sustained to date, despite the paucity
of information
before me as to how these costs were arrived at, their reasonable
etc. In
Meadow
Glen Home Owners Association & others v Tshwane City Metropolitan
Municiplity
&
another
[11]
Wallis
JA at para 35 notes the need for Courts to be:
‘…
to
be creative in framing remedies to address and resolve complex social
problems, especially those that arise in the area of socioeconomic
rights. It is necessary to add that when doing so in this type of
situation courts must also consider how they are to deal with
failures to implement orders; the inevitable struggle to find
adequate resources; inadequate or incompetent staffing and
other administrative issues; problems of implementation not foreseen
by the parties' lawyers in formulating the order; and the
myriad
other issues that may arise with orders, the operation and
implementation of which will occur over a substantial period
of time
in a fluid situation. Contempt of court is a blunt instrument to
deal with these issues and courts should look to
orders that secure
ongoing oversight of the implementation of the order.’
[36]
I take no issue with the observations by Wallis JA above, but I am
constrained by the facts in the matter presently before
me. I
also agree with Mr
Broster
that the municipality has not come before this
Court to contest a damages claim. The applicant assesses its
claim to be R999 001,80
based on costs incurred from the date of
non-compliance with the Order of Sishi J until June 2015. That
amount would have
obviously increased with the effluxion of time from
June 2015. The applicant may well have good grounds to pursue
such a
claim; however I do not consider that such a claim is properly
before me, nor is the amount claimed clearly ascertainable without
regard to further evidence. The claim also arose only in the
replying affidavit and was pursued in the applicant’s
Heads of
Argument. The municipality, to the extent that the claim would
lay against it alone, has had no opportunity to raise
a defence to
the claim.
[37]
I therefore decline the invitation to make any ruling in relation to
the claim for damages, but consider it appropriate to
refer the
matter to trial in order for the claim to be properly ventilated.
I am of the view that that is a just and equitable
approach to such a
claim.
[38]
Mr
Boulle
handed
several draft orders to me which contemplated either a dismissal or
granting of the variation application, and all were consistent
in
believing that I would grant the order for contempt. That not
being the case, the remaining issue is what steps must be
taken to
alter the time periods of the Order of Sishi J. Uniform Rule
27(1) empowers me to extend the time periods for the
compliance with
the Order. It seems entirely logical as the dates for the
compliance with that Order have long passed and
have been superseded
by other events. To avoid any confusion that may result from the
deletion of certain words, sentences or dates,
the Order is modified
to cater for the immediacy of the situation. I am not inclined to
make any Orders as to the obligations of
the municipality and/or the
City Manager in carrying out the Order of 7 November 2012 (subject to
the amended time periods below).
These obligations are
self-evident from
sections 55
and
56
of the
Local Government:
Municipal Structures Act 117 of 1998
.
[12]
I
am also not inclined to grant any Orders to oversee the
municipality’s compliance with the relocation Order. The
municipality
must now comply with the Order and provide alternative
housing to the unlawful occupiers, whose names appear at pages 83 and
84
of the indexed papers. A salutary reminder as to the importance of
observance of court orders was reinforced by the Full Court in
SA
Litigation Centre v Minister of Justice
[13]
albeit
with reference to the government as opposed to local authorities. The
Court referred to section 165 of the Constitution which
provides that
the judicial authority of the Republic is vested in the courts, more
particularly that
“
(3)
No person or organ of state may interfere with the functioning of the
courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.”
[39]
With regard to costs of the contempt application, the applicant
sought costs on an attorney client scale. The municipality,
in its
Heads of Argument, tendered the applicant’s costs in respect of
the contempt application. The applicant was compelled
to come to
Court only because of the delay by the municipality in relocating the
unlawful occupiers. Even though it was unsuccessful
in the contempt
application, it would be unfair that the members of the applicant
bear the costs of instituting these proceedings
designed to ensure
compliance by the municipality with its legislative obligations.
I consider that an award of party and
party costs to the applicant is
an equitable result. As regards the counter claim, that
application is dismissed with costs.
The unlawful occupiers were
represented
pro bono
.This
Court is indebted to Mr
Jeffrey SC
and
his instructing attorneys for their assistance to the occupiers.
[40]
In the result, I make the following Order:
1.
The second respondent’s counterclaim and
variation application is dismissed with costs.
2.
The applicant’s application for contempt of
the eviction and relocation Order granted by this Court on 7 November
2012, is
dismissed.
3.
The second respondent is directed to pay the
applicant’s costs of the contempt application;
4.
The time periods set out in the Order of this
Court issued on 7 November 2012 are amended to read as follows :
‘
(2)
The persons referred to in paragraph 1 above are Ordered to vacate
the said property by 31 March 2016.
(3) The second
respondent (municipality) is Ordered and directed to erect and
construct the wood and corrugated iron structures
situated upon
concrete platforms in the located sites owned by the second
respondent at Emaus area, as contemplated in their housing
report
dated 4 April 2012 to relocate and house the Unlawful Occupiers
currently occupying the applicant's property.
(4) The erection and
construction of these structures shall be finalised on or before 24
March 2016.
(5)
In the event that the Unlawful Occupiers do not vacate the property
in accordance with the provisions of paragraph 2 hereof,
then, three
(3) days following the day referred to in para 2 thereof, being 4
April 2016, the sheriff is authorised to evict any
such persons
remaining in occupation of the property and is further authorised to
employ any necessary force in Order to give effect
to this Order.
’
5. The applicant’s
claim for damages suffered from the date of non-compliance of the
Order of 7 November 2012 until the date
of final relocation of the
1st, 3rd, 4th, 5th, 6th, 7th and 8th respondents from its land
situate at Erf [....] Pinetown, is referred
for trial.
6. The applicant’s
replying affidavit dated 4 August 2015 shall stand as a simple
summons.
7. The second
respondent is directed to file its declaration within twenty [20]
days of the granting of this Order.
M
R CHETTY
Appearances:
For
the Applicant :
Adv. A Boulle
Instructed
by :
Garlicke & Bousfield
Ref:
CSeger\PN\yn\A235
Umhlanga
Rocks- 031570 5300
For
the First Respondent :
Adv AG Jeffrey SC
Instructed
by :
Larson Falconer Hassan Parsee Inc
Ref:
21\P303\001
Umhlanga
Rocks- 031534 1600
For
the Second Respondent :
Adv JB Broster
Instructed
by :
Berkowitz Cohen Wartski Attorney
Ref:
e Sibiya\tcn\52e336230
Date
of Hearing:
26 November 2015
Date
of Judgment:
15 February 2016
[1]
Refers
to the judgment and Order issued by His Lordship Mr Justice Sishi on
7 November 2012.
[2]
2012
(2) SA 104 (CC).
[3]
2012
(2) SA 337 (CC).
[4]
2013 (1) SA 555 (KZD).
[5]
1992 (4) SA 490
(W).
[6]
See
also
Clipsal
Australia (Pty) Ltd & others v GAP Distributors & others
2010
(2) SA 289 (SCA).
[7]
1984
(3) SA 623 (A).
[8]
2008
(3) SA 371 (SCA).
[9]
2006
(4) SA 326 (SCA).
[10]
2015
(5) SA 600 (CC).
[11]
2015
(2) SA 413 (SCA).
[12]
See
City
of Johannesburg Metropolitan Municipality v Hlophe
2015
JDR 0541 (SCA).
[13]
2015
(5) SA 1
GP at 19, para [38]