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[2016] ZAECMHC 40
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Fikela and Others v Minister of Safety and Security and Another (228/09) [2016] ZAECMHC 40 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 2288/09
22/9/2016
BONGIWE
PHILDA FIKELA &
ORS Applicants
and
MINISTER
OF SAFETY &
SECURITY 1
st
Respondent
KING
SABATA DALINDYEBO
MUNICIPALITY 2
nd
Respondent
APPEAL
JUDGMENT
BROOKS
J
[1]
The appellants initially opposed individual applications brought
against them by the respondent. On 20 September 2011
the
respondent gave notice of an application to consolidate those
applications. The notice was supported by an affidavit
deposed
to by the attorney of record instructed by the respondent in which it
was alleged that all the applications involved exactly
the same
merits, being based upon the same cause of action and being opposed
upon the same grounds. Accordingly on 29 September
2011 the
applications were consolidated under the case number allocated
originally to the application brought against the first
appellant.
[2]
Argument was eventually heard on 30 August 2012 and judgment was
reserved. On 11 February 2014 judgment was given and
an order
issued in the following terms:
“
1. 1 to 26
respondents and any other person occupying the premises listed herein
under respectively, at each respondents’
instance be and
directed to vacate the said premises within ninety (90) days of the
grant of this order.
2. That the
respondents and/or any other person occupying the premises at the
respondent’s instance or otherwise be and is/are
hereby
interdicted and restrained from being in the premises for the purpose
of unlawfully occupying it or residing therein;
3. That the Sheriff
of this Honourable Court be authorised to request the South African
Police Service (“SAPS”) to assist
in the eviction of the
respondent and/or any other person occupying the premises at the
respondent’s instance or otherwise,
in the event of the
respondent or such other person/s not adhering to the order referred
to in paragraph 1 and 2 herein above;
4. That the
respondents are ordered to pay costs of this application, jointly and
severally one paying the other to be absolved.”
(
sic
)
(A
description of the premises included at the foot of the order has
been omitted from this judgment).
[3]
On 23 October 2014 an application for leave to appeal against the
judgment and order of the court
a quo
was dismissed with
costs.
[4]
On petition to the Supreme Court of Appeal the following order was
granted on 23 February 2015:
“
1) Leave to
appeal is granted to the Full Court of the Eastern Cape Division of
the High Court.
2) The cost order of
the court
a quo
in dismissing the application for leave to
appeal is set aside and the costs of the application for leave to
appeal in this court
and the court
a quo
are costs in the
appeal. If the applicant does not proceed with the appeal, the
applicant is to pay these costs.”
[5]
Thereafter some logistical difficulties appear to have arisen
necessitating a further approach by the appellants to court.
On
29 October 2015 an order was made in the following terms:
“
1. The
applicants are hereby condoned for their non-compliance with Rule
49(7)(d) of the Uniform Rules of Court.
2. The applicants
are directed to prepare the appeal record within twenty one (21) days
from the date of this order.
3. There is no order
as to costs.”
[6]
The substantive relief claimed by the respondent against each
appellant being a final order of eviction, the matter was governed
by
the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
Some of the grounds of appeal which have been included in the notice
of appeal amount to no more than a tautologous repetition
of the
submission that the court
a quo
erred in granting an order for
eviction in circumstances where the respondent had failed to place
before the court jurisdictional
factors as required by the provisions
of s6 of “PIE”. Other grounds of appeal included in
the notice of appeal
amount to a submission that the court
a quo
erred in not applying the so-called “
Plascon-Evans
”
test to the application when considering whether or not substantive
relief should be granted.
[7]
Inasmuch as the respondent sought final relief in motion proceedings
in the court
a quo
, it is indeed so that the correct approach
to the resolution of the dispute between the parties as ventilated in
the exchange of
affidavits was an application of the “
Plascon-Evans
”
rule.
[8]
It is convenient to set out in full a recent re-statement
[1]
of the principles embodied in the “
Plascon-Evans
”
rule:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless
the circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It is well established under the
Plascon–Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant’s (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together
with the facts
alleged by the latter, justify such order. It may be different
if the respondent’s version consists
of bald or uncreditworthy
denials, raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable
that the court is justified in
rejecting them merely on the papers.
[2]
The court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting
the NDPP’S
version.”
[9]
The first appellant is an adult person in the employ of the
Department of Safety and Security. It is common cause that
at
the time the application for her eviction was brought she held the
rank of senior superintendant. In the founding affidavit
the
respondent relied for the substantive relief contended for upon what
was alleged to be the applicable “Housing Policy”.
One of the salient points of the policy was alleged to be that “in
allocating official housing, priority shall, as far as
possible be
given to employees at lower levels than superintendent.”
A copy of the policy was attached to the founding
affidavit as
annexure “FAI”. It was alleged that the first
appellant was in occupation of certain premises unlawfully
in that
she had been in occupation thereof for a period in excess of the
three years allegedly provided for in the policy, she
held the rank
of senior superintendent and that she had been notified by the South
African Police Service to vacate the premises
but had not done so.
[10]
An examination of the content of annexure “FAI” in
preparation for the appeal revealed that no mention is made
therein
of the limitation of occupation to a period of three years. The
only reference to a time period occurs in paragraph
9.1 thereof,
which reads:
“
The official
housing will be allocated for a period of two years to qualifying
employees based on the following criteria….”
[11]
Similarly, no reference is made in annexure “FAI” as
included in the record to the priority of allocation of official
housing to employees at levels lower than superintendant.
Paragraph 3.1.5 thereof reads:
“
in allocating
official housing, priority should, as far as possible be given to
employees at lower levels;”
What
is meant by lower levels is not defined.
[12]
Moreover, no annexure is referred to or included in the founding
affidavit in support of the general allegation that the first
appellant remained in occupation of the premises despite having been
given notice to vacate them by the South African Police Service.
[13]
During argument, Mr SISHUBA, who appeared on behalf of the
respondent, expressed surprise at the criticisms levelled against
the
court’s inability to reconcile the allegations made in the
founding affidavit pertaining to the respondent’s housing
policy with the content of annexure “FAI”. He
informed the court that the document placed before the court as
annexure “FAI” was not the document which had served as
annexure “FAI” before the court
a quo
. He
referred the court to a copy of annexure “FAI” in his
possession which he insisted had served before the
court
a quo
and in which indeed the content was supportive of the allegations
made in the founding affidavit. Neither he, nor Mr KUNJU,
who
appeared on behalf of the appellants, were able to explain why the
incorrect annexure formed part of the appeal record.
That such
a state of affairs can arise before an appeal court is a matter of
great concern. Ultimately, it is the duty of
an appellant’s
attorney of record to ensure that the record of proceedings in the
court
a quo
which is placed before the appeal court is
compiled correctly. Plainly, in this instance, this duty was
not discharged in
an acceptable manner. Fortunately, for
reasons which will become apparent, this failure to provide the court
with an accurate
record of the proceedings in the court
a quo
did not lead to a postponement of the appeal. Were such a
postponement to have been necessary a punitive costs order made
against the appellants’ attorney of record
de bonis propriis
may well have been made.
[14]
The first appellant alleged that her occupation of official premises
was not governed by the content of annexure “FAI”
but by
the content of a document dated 4 July 1995, a copy of which is
annexed to her answering affidavit. A reading thereof
reveals
that whilst much of its content reflects wording contained in
annexure “FAI” to the founding affidavit, notably
absent
therefrom is any reference to a fixed period of time, whether that be
three years or two years, and similarly to any disqualification
from
occupation of official premises based upon rank. The answering
affidavit specifically disputes that the first appellant
occupies the
premises based upon the housing policy relied upon by the
respondent. In it the first appellant also denies
that she was
given notice to vacate the premises.
[15]
The replying affidavit deposed to on behalf of the respondent does
nothing to displace the allegations made by the first appellant
relating to the applicable housing policy. It merely re-asserts
the allegations made in the founding affidavit, the deponent
stating
simply:
“
The
department’s premises can only be lawfully occupied in terms of
the department’s policy as set out in “FAI”.”
The
respondent attaches a copy of an email set out by the Divisional
Commissioner Supply Chain Management of the South African Police
Service on 23 April 2008 to all Provisional Commissioners in
purported proof of the implementation of the department’s
policy.
[16]
The entire matter appears, subsequent to the order of consolidation,
to have proceeded and to have been considered on the basis
of these
allegations. It is apparent that this approach was appropriate.
[17]
Paragraph [16] of the judgment of the court
a quo
contains a
summary of the salient points of the housing policy relied upon by
the respondent. In doing so, reference is made
only to the
content of the founding affidavit. No comparative analysis is
made between the content of the affidavit or annexure
“FAI”.
Nor is any reference made to the absence of independent proof that
notice to vacate the premises was given.
Paragraph [17] of the
judgment states simply:
“
This has not
been placed in dispute by the respondents.”
[18]
In my view, the court
a quo
erred in the assessment of the
competing allegations made in the affidavits exchanged. Not
only did the appellants dispute
the salient points of the housing
policy set out in the founding affidavit and its annexure, whichever
version of “FAI”
may have been included as that annexure,
but the appellants relied upon a competing document in amplification
and as proof of the
allegations made in the answering affidavit.
Accordingly, the appellants’ version did not consist of bald or
uncreditworthy
denials, nor did it raise a fictitious dispute of fact
or present a version which was palpably implausible, far-fetched or
so clearly
untenable that it fell to be rejected merely on the
papers. In accordance with the accepted “
Plascon-Evans
”
test, the appellants’ version ought to have been accepted as
part of the consideration of whether or not the respondent
was
entitled to final relief.
[19]
Mr SISHUBA submitted that the version placed before the court
a
quo
could safely be rejected as not
bona fide
because
the alteration in the housing policy introduced and encapsulated in
annexure “FAI” had been accepted by representatives
of
various employee organisations acting on behalf of the appellants.
In support of his submission he referred the court
to a document
included at the end of annexure “FAI” dated variously 30
June 1995 and 28 June 1996 and headed “Agreement
Reached by
South African Police Negotiation Forum”. In my view, this
document is of little assistance. Even if
the new housing
policy had been agreed to by representatives of various employee
organisations within the South African Police
Service, there is no
evidence that the appellants are members of such organisations or,
even if they were, that the content of
the new housing policy had
been brought to their individual notice. Their tenancy in
official housing is governed by individual
contracts, whether written
or oral, which can only be amended, replaced or terminated by
personal communication between the appellants
and the relevant
authorities.
[20]
Any suggestion that the appellants’ occupation of official
premises currently is governed by the housing policy set out
in
annexure “FAI” is dealt a further blow by the content of
the answering affidavit. In terms of the provisions
of annexure
“FAI”, the entitlement to official housing is assessed by
the respondent upon the production of a completed
application form.
The first appellant attached a blank copy of this application to her
answering affidavit stating that she
had never completed one and
challenging the respondent to produce one completed by her when
filing the replying affidavit.
This challenge was not met.
Even if the policy was circulated to Provincial Commissioners, the
papers are silent as to what
steps were taken to implement it in
respect of individual employees.
[21]
Had the court
a quo
given proper consideration to the
challenge made by the first appellant in her answering affidavit to
the allegations made in the
founding affidavit and to the version
advanced in the answering affidavit, in accordance with the “
Plascon
Evans
” test, it would have been clear that the respondent
was not entitled to the final relief contended for and that the
application
must be dismissed.
[22]
Nothing in this judgment is to be construed by the appellants as
granting them any immunity from the obligation in the future
to bring
their occupation of official premises in line with current
departmental policy. Whilst they may have demonstrated
that at
the time of deposing to the answering affidavits the housing policy
set out in annexure “FAI” was either not
brought to their
individual attention or was not implemented by the appropriate
regional authority on an individual basis, and
that accordingly their
tenancy was governed by previous policy, it cannot now be stated by
any of the appellants that they are
ignorant of the amended housing
policy of the respondent. It would be reasonable to assume that
whilst it is apparent that
the relevant regional representative of
the respondent did not seek to implement the amended housing policy
in a proper manner
negotiated between the appellants and their
relevant regional housing authority, their intention to do so
remains.
[23]
In light of the conclusion reached upon an assessment of the
application of the “
Plascon-Evans
” rule upon the
application papers, it is not necessary to give specific
consideration to the submissions made on behalf of
the appellants
pertaining to the paucity of the compliance by the respondent with
the jurisdictional requirements of “PIE”.
[24]
It follows that the appeal must succeed. No reason exists why
costs should not follow the result.
[25]
The following order is made:
“
1. The appeal
succeeds, with costs.
2. The judgment and
order of the court
a quo
dated 11 February 2014 are hereby set
aside and replaced with the following:
“
The
application against the twenty-six respondents is dismissed with
costs.””
RWN
BROOKS
JUDGE
OF THE HIGH COURT
SMITH
J:
I
agree.
J
SMITH
JUDGE
OF THE HIGH COURT
NOTUNUNU
AJ:
I
agree
M
NOTUNUNU
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For
the appellants:
ADV V. KUNJU
Instructed
by
Clayton Mkhululi
Manxiwa & Co
512 Nelson
Mandela Drive
MTHATHA
For
the respondent:
ADV M. H. SISHUBA
Instructed
by
M. B. Mda & Associates
46 Wesley Street
MTHATHA
Appeal
heard on:
16 September
2016
Judgment
delivered on: 22 September
2016
[1]
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ZUMA 2009(2) SA 277(SCA)
par [26].
[2]
PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA
623
(A) 634-635; FAKIE NO v CC 11 SYSTEMS (PTY) LTD
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) par [55]; THINT (PTY) LTD v NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS AND OTHERS; ZUMA v NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
AND OTHERS
2009 (1) SA 1
(CC)
(2008 (2) SACR 412
;
[2008] ZACC 13)
paras [8]-[10].