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[2016] ZAECMHC 16
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Vuthela and Another v Mhlontlo Local Municipality (3393/2014, 3394/2014) [2016] ZAECMHC 16 (12 April 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, MTHATHA
CASE
NO. 3393 and 3394/2014
In
the matter between:
LADUMA
VUTHELA
First Applicant
LUNGISWA
NONTLAYIYA
Second Applicant
and
MHLONTLO LOCAL
MUNICIPALITY
Respondent
JUDGMENT
Bloem J.
[1]
On 25 November 2014, some 16 months ago,
Mjali J issued a
rule nisi
as a matter of urgency calling on the respondent to show cause on 11
December 2014 why the following orders should not be made
final:
“
3.1
That the respondent’s action of evicting applicants from their
homes and demolishing
the homes of their families without any
authorization by the Court to do so, be and is hereby declared
unlawful;
3.2
That the respondent be and is hereby interdicted and prohibited from
proceeding
with the demolishing and eviction of applicants from their
homes at Chris Hani Township, Tsolo, which is within the respondent
Municipality’s area of jurisdiction;
3.3
That in the event the respondent Municipality has demolished
applicants’
homes unlawfully without any Court Order, be and is
hereby ordered and directed to re-construct applicants’ homes
so unlawfully
demolished. To afford shelter to applicant’s
family.”
[2]
The court also ordered that paragraphs 3.2
and 3.3 operate as interim relief or a
mandamus
until the finalisation of the application. The
rule
nisi
has been extended from time to
time.
[3]
The first applicant is an adult male while
the second applicant is an adult female. Both of them reside at
Chris Hani Township,
Tsolo (the township). The respondent is
the Mhlontlo Local Municipality. The township falls within the
respondent’s
territorial area of jurisdiction.
[4]
Before
I set out the material facts of this application, I deem it necessary
to say something about the founding papers. On
25 November 2014
Mjali J was faced with two applications each with its own notice of
motion and founding affidavits. The
two notices of motion were,
save for the applicants’ names, word for word the same.
Even the mistakes therein were
the same. For instance, in
paragraph 2 thereof condonation was sought for the respective
applicant’s “
non-compliance
with the General amendment Act of 19…
”
[1]
.
Furthermore, as is apparent from paragraph 3.3 thereof there is a
loose standing sentence wherein the word shelter is wrongly
spelt as
“
sheltr
”.
The affidavits in support of the relief sought are, save for the
applicants’ names and their personal particulars,
exactly the
same. I have no doubt that Mjali J realised that the senseless
duplication would unnecessarily increase costs.
The learned
Judge then ordered that the applicants to apply for the consolidation
of the two applications. That was not done,
although it must be
said that only one answering affidavit and 1 replying affidavit were
delivered. In view of the conclusion
that I reach it is
unnecessary to take this issue any further but to warn that it might
be necessary in future to order practitioners,
to whom litigants
entrust the conduct and prosecution of their cases, to pay the costs
which are incurred by the unnecessary duplication
of notices and
affidavits, a clear abuse of the process of this court.
[5]
The applicants have been residing in a
township since 1993. As I understand it, when they launched the
application their case
was that the respondent was about to demolish
the houses (shacks) in which they and their families live to build
low cost houses
(RDP houses) on the same land. They therefore
sought an interdict to prevent the demolition of their houses.
In the
event of the houses having been demolished by the time they
secured an order from this court, the applicants sought an order that
the houses be rebuilt by the respondent. The applicants refused
to leave the township because, so they alleged, the respondent
had
not provided them with alternative accommodation. The
respondent’s case is that it and the residents of the township,
inclusive of the applicants, reached agreement to the effect that
they would be temporarily relocated, their houses be demolished
after
relocation to enable the Eastern Cape Department of Human Settlements
to build RDP houses for those residents. They
alleged that,
while the demolition was in progress, the applicants complained about
the nature of the alternative accommodation
provided by the
respondent.
[6]
The undisputed facts are that the
respondent’s officials called a meeting scheduled for 5
November 2014 of all the residents
of the township and other
residents who had applied for RDP houses in the township. That
meeting was adjourned until 6 November
2014 to enable residents to
produce copies of their identity documents to the respondent.
[7]
The applicant’s alleged that they
were surprised when, during the meeting of 6 November 2014, it was
demanded that they should
vacate the township and demolish their
houses before 21 November 2014, failing which the respondent would
demolish their houses.
The applicants furthermore alleged that
during that meeting no mention was made by the respondent of the
provision of alternative
accommodation for the residents of the
township. The applicants alleged that the respondent intended
demolishing the houses
from 24 November 2014, hence the urgent
application on 25 November 2014.
[8]
The respondent’s case is that in the
meeting of 5 November 2014 the local councillor, Speaker and Mayor
informed the residents
that the aforesaid provincial department would
build RDP houses at the township. Residents were requested to
volunteer to
move to alternative accommodation, to be provided by the
respondent, while their houses would be demolished and RDP houses
built.
The residents, including the applicants, agreed.
To prove the agreement the respondent attached a document to its
answering
affidavit. That document was signed on 7 November
2014 by the applicants and one of the respondent’s officials.
The heading thereof refers to an agreement to be removed from the
shacks where the low cost houses were to be built. In the
body
of that document the applicants agreed to be removed from the land
where the low cost houses were to be build and to be accommodated
at
a place to be selected by the respondent while those houses would be
built. According to the respondent the alternative
accommodation consisted of the Tsolo Junction Multipurpose Hall,
temporary tents to serve “
as bath
places for both men and women, respectively,… 6 (six) mobile
separate but similar sanitary establishments for use
by men and women
and … provision for water to be transported on site in the
mornings, midday and early evening
”.
It was only after the applicants’ houses had been demolished
that the applicants, for reasons unknown to the
respondent, did not
want to be bound by the terms of the agreement. In its answering
affidavit the respondent tendered the above
alternative
accommodation. It also tendered to prioritise the accommodation
of the applicants in the newly build low cost
houses as soon as they
had been constructed.
[9]
Ms
Nyobole, counsel for the applicants, submitted that there was
obviously a dispute of fact regarding the provision of alternative
accommodation. She nevertheless submitted that the applicants
are entitled to the relief sought on the papers, but applied
in the
alternative for the matter to be referred to oral evidence if the
main argument failed.
[2]
Mr Hobbs, counsel for the respondent, submitted that the applicant
has not made out a case for the relief sought and that
the
rule
nisi
should accordingly be discharged with costs.
[10]
In their founding affidavits the
applicant’s create the impression of a heartless municipality
which demolished their houses
in which they reside with their
families “
which consist of young
adults, small children and old people and some few family members
with disabilities
” without
providing alternative accommodation. Not a single word was said
by either applicant in his or her founding
affidavit about the
respondent providing alternative accommodation. To the
contrary, in their founding affidavits they both
alleged that the
“
respondent’s officials did
not concern themselves about the place where we will stay if we
vacate our homes and thereafter
they are demolished
”.
It was only in their replying affidavit that the applicants
acknowledged that they signed the above agreement on
7 November
2014. They then also acknowledged that the respondent provided
the above tents but took the view that they “
could
never have agreed to be ‘lumped’ into two tents, men in
one tent and women in another tent
”,
that those tents do not qualify as alternative accommodation and that
“
individual tents or well-built
shacks should at least having been provided for each household
”.
[11]
I agree with Mr Hobbs that there might have
been a
bona fide
dispute of fact about the provision and unsuitability of the
alternative accommodation provided by the respondent had the
applicants
dealt with the provision of alternative accommodation in
their founding affidavit. When they deposed to their founding
affidavits
they had knowledge that the respondent had provided
tents. They could then have complained in their founding
affidavits about
the unsuitability of the alternative accommodation.
They failed to do so. They complained about the unsuitability
of
the alternative accommodation only in their replying affidavit.
The respondent was obviously prejudiced because it could not
respond to the allegations contained in the applicants’
replying affidavit.
[12]
As
a general rule an applicant in motion proceedings must make out his
case in his founding papers. He should disclose such
facts as
would, if true, justify the relief sought. At the same
time he should sufficiently inform his opponent of
the case that he
is required to meet. An applicant would generally not be
allowed to supplement his case by adducing supporting
facts in his
replying affidavit, especially when those facts should have been
contained in his founding affidavit.
[3]
In the present application the relief sought was premised in the
founding affidavits on the allegations that the applicants
were not
given “
an
eviction notice in terms of the PIE Act
”
[4]
and that the respondent’s officials did not provide alternative
accommodation to the applicants. That was the case
that the
respondent was called upon to meet.
[13]
The respondent met that case by relying on
the above agreement which negates not only the need for a notice as
contemplated in the
PIA Act but also any unlawful conduct on the part
of the respondent. Section 26 (3) of the Constitution provides
that no
one may be evicted from his or her home, or have his or her
home demolished, without an order of court made after considering all
relevant circumstances. Where, in a case such as the present,
there is an agreement that the owner of the house will vacate
it to
enable the demolition thereof to facilitate the construction of a
better house for him or her, logic dictates that there
is no need for
a court order to sanction such eviction and demolition. The
respondent furthermore met the applicants’
case by showing that
it provided alternative accommodation in the form described above.
In reply the applicants acknowledged
that such alternative
accommodation was provided but claimed that it was insufficient.
In my view the issues which were raised
in the applicants’
founding affidavits were resolved when the applicants acknowledged
the agreement and that the respondent
provided alternative
accommodation to them and the residents of the township. The
dispute of fact to which Ms Nyobole referred
relates not to the
provision of alternative accommodation but to the unsuitability
thereof. That is not the real issue herein.
Her
submission that the matter should be referred to oral evidence can
accordingly not be sustained.
[14]
I am of the view that, had Mjali J known on
25 November 2014 that there was an agreement between the parties and
that the respondent
had provided alternative accommodation to the
applicants, she would in all probability not have issued the
rule
nisi
. In my view the
rule
nisi
should not have been issued in the
first place.
[15]
In the result, it is ordered that the
rule
nisi
be and is hereby discharged with
costs.
_________________________
G
H BLOEM
Judge
of the High Court
For
the applicants:
Adv EN Nyobole, instructed by Nkoli Madaza & Associates, Mthatha
For
the respondent:
Adv JL Hobbs, instructed by Cingo Attorneys, Mthatha
Date of
hearing:
31 March 2016
Date
of delivery of the judgment:
12 April 2016
[1]
Instead
of the General Law Amendment Act, 1955 (Act No. 62 of 1955).
[2]
Administrator
Transvaal and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(AD) at 200A-D.
[3]
National
Council of Societies for Prevention of Cruelty to Animals v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349A-C;
Minister
of Safety and Security v Jongwa and Another
2013 (3) SA 455
(ECG) at 462B-C.
[4]
Prevention
of Illegal Eviction from and Unlawful Occupation of Land Act, 1998
(Act No. 90 of 1998).