About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 462
|
|
Ekurhuleni Metropolitan Municipality v Rosenkrantz (82075/2014) [2016] ZAGPPHC 462 (6 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
I
N
THE
HIGH
COURT
OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
DATE:
6/6/2016
Date of
hearing: 29 April 2016
Case
number: 82075/2014
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
In the matter between:
EKURHULENI
METROPOLITAN
MUNICIPALITY Applicant
and
SHAWN WARREN
ROSENKRANTZ Respondent
JUDGMENT
BRENNER
AJ
1.
This case involves the application of the rule of law, and the
doctrine of legality, to competing interests between a Municipality,
on the one hand, and occupiers of agricultural property, on the
other.
2.
For convenience, the applicant in casu, the Ekurhuleni Metropolitan
Municipality, is referred to as "the Municipality",
and the
respondent, Shawn Warren Rosenkrantz, is referred to as
"Rosenkrantz".
3.
In November 2014, the Municipality launched an application in this
Court in which it applied for an interdict against Rosenkrantz
to
prohibit him from using his property for purposes other than those
authorised under his title deed, namely, for purposes other
than as a
place of residence for one family, and/or for agricultural purposes.
Secondly, the Municipality sought an order directing
Rosenkrantz to
demolish and remove unauthorised structures on the property.
Rosenkrantz was the only respondent cited in the application.
The
application was opposed.
4.
The property is a portion of a farm. Its title deed description is
portion 127 (a portion of portion 54) of the farm T […]
Province of Gauteng. It is currently held by Rosenkrantz under Deed
of Transfer T92823/1997. It was previously described as Holding
[…]
Agricultural Holdings. Same will be referred to below as "the
property".
5.
The gist of the Municipality's complaint is twofold: its complaint is
that buildings, other than the main house, have been erected
on the
property for which no building plans were approved, and for which no
permission was obtained from it. These buildings are
being used to
house several families who pay rent to Rosenkrantz's mother and
step-father, who also reside on the property, in
the main house. In
the result, so it argues, the latter parties are conducting a rental
enterprise on the property, contrary to
the usage permitted under the
title deed conditions.
6.
It contends that Rosenkrantz has also contravened provisions of the
National Building Regulations and Building Standards Act,
103 of 1977
("the Building Regulations Act"), in regard to the
unlawfully erected structures, and the Peri Urban Areas
Town Planning
Scheme of 1975 ("the Scheme"), in regard to the permitted
use of the property.
7.
It maintains that it is duty-bound, in terms of section 40(1) and
115(1) of the Town Planning and Township's Ordinance No. 15
of 1986
(Transvaal), ("the Ordinance"), to enforce and ensure
compliance with provisions of the Scheme and conditions
of title
imposed under title deeds to properties within its area of
jurisdiction.
8.
In terms of section 4 (1) of the Building Regulations Act, no person
shall, without the prior approval in writing of the local
authority,
erect any building in respect of which plans and specifications are
to be drawn and submitted. In terms of section 4(4),
any person who
contravenes section 4 shall be guilty of an offence and liable on
conviction to a fine not exceeding R100,00 for
each day on which he
is engaged in so erecting such building. Under section 12 of this
Act, if the local authority is of the opinion
that any building is
dilapidated or in a state of disrepair, or is dangerous or shows
signs of becoming so, it may order the owner
of such building to
demolish or alter same.
9.
Photographs of the structures provided by the Municipality reveal the
outbuildings on the property as the irregular and uncoordinated
addition of one structure onto another, in a crude fashion, with
plastering which is incomplete, windows of differing size and
configuration, and sloped roofing of corrugated iron, held down by
solid objects placed on the roofing to keep same intact. Some
of the
buildings are made of brick, while others are boarded up vertically
and horizontally with corrugated iron. On the probabilities,
these
buildings would never have been approved by any building inspector.
No proof to the contrary was produced by Rosenkrantz.
10.
Rosenkrantz raises two points in limine. Firstly, he argues that the
demolition order will cause the de facto eviction of the
tenants on
the property through the back door. The tenants have been permitted
by him to occupy the property and therefore their
rights are
protected by the Extension of Security of Tenure Act, 62 of 1997
("ESTA"), which came into operation on 28
November 1997. In
terms of section 17(1) of ESTA, only the Magistrates' Court or Land
Claims Court has jurisdiction to entertain
the disputes in casu, and
this being the case, the application should be dismissed. If he is
correct, this point will be dispositive
of the application in this
Court, but not dispositive of the case on the merits.
11.
Rosenkrantz argues further that the tenants have a direct and
substantial interest in the subject-matter of this litigation,
and
ought to have been joined as co-respondents in the application. In
the normal course, a defence of non-joinder is dilatory
in nature, in
the sense that the case may be suspended by the Court pending joinder
of the relevant parties.
12.
Rosenkrantz provides a list of most but not all of the tenants of the
property. The list includes seventeen adults, with dependants
listed
as thirty children, one mother and seven wives. It is not clear
whether all of the dependants are occupiers as well. Rosenkrantz
omits to provide all necessary detail. He asserts that the tenants
are indigent, and this is not denied.
13.
He asserts that the Municipality ought to have joined his mother,
Frederika Francina Goebel ("Mrs Goebel"), born on
9 October
1945, and his step father, Heinz Gerhard Max Goebel ("Mr
Goebel"), born on 11 January 1932. While the
Goebels reside in
the main residence and not the outbuildings, so that their right of
occupation would not be threatened by an
adverse order, they appear
to be the parties who have entered into leases with the tenants and
are arguably necessary parties to
the case for this reason.
14.
In motivating his argument that the Goebels should be joined,
Rosenkrantz contends that the Goebels are "older persons"
in need of care and protection as envisaged in terms of
section
25(5)(a)
of the
Older Persons' Act, 13 of 2006
. This by virtue of the
fact that if their rental income from the tenants on the property is
forfeited, it will be
"against their will and they will
suffer from irreparable economic abuse".
15.
Rosenkrantz denies that the structures were unlawfully erected and
puts the Municipality to the proof thereof. He contends that
the
buildings in dispute were already erected when he acquired the
property in 1997. He initially averred that the Municipality
should
be estopped from enforcing its statutory obligations as a result of
its inaction in enforcing same, thereby creating the
"reasonable
apprehension/representation" to him and to the other occupiers
that the structures were lawful. This defence
was abandoned in
argument before Court.
16.He
was well advised to do so, in the light of the case of City of
Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd
2008 (3)
SA 1
SCA,
in which the SCA, at par 16 page 6 said:
"It
is settled law that
a
state of affairs prohibited by Jaw in
the public interest cannot be perpetuated by reliance upon the
doctrine of estoppel.
"
17.
Rosenkrantz refers to the constitutional obligation on the
Municipality to provide the tenants with temporary emergency
accommodation
if eviction is ordered. He refers to section 26(3) of
the Constitution which, in the Bill of Rights Chapter, under housing,
provides:
"No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all
the relevant
circumstances. No legislation may permit arbitrary evictions."
18.The
undisputed facts concerning the provenance of the dispute, (elicited
through the affidavits of Rosenkrantz and the former
owner of the
property, one Almari Visser, formerly Koekemoer, ("Visser"),
and unchallenged by the Municipality), are
as follows.
19.Visser
acquired the property from her late father-in-law in 1995 or 1996,
when the structures and outbuildings were already in
situ. The
outbuildings were used as storage facilities for a trucking company
specialising in furniture removal. This business
was formerly
conducted by Visser's father in-law.
20.
When Rosenkrantz acquired the property, the outbuildings had already
been altered and subdivided into rooms, which were occupied
by
Visser's and her father-in-law's previous employees. On 3 May 1997,
Rosenkrantz bought the property from Visser for the price
of R180
000,00. The transfer was registered on 10 September 1997, together
with a mortgage bond for R130 000,00. A second bond
was registered on
30 November 2001 for the sum of R37 180,00. These bonds were
cancelled on 28 February 2008, when a new bond was
registered for the
sum of R740 000,00. There is no indication in the papers as to what
this loan was used for.
21.
Condition C of the title deed is germane to the issues and reads:
"Die
eiendom is onderhewig aan die vo/gende voorwaardes opgele kragtens
Skedule van Voorwaardes K
1
Tensy die skrifte/ike toestemming van die
Administrateur
vooraf daartoe verkry is, mag nie
meer as een woonhuis, dit beteken
'
n
huis
wat
ontwerp
is
vir
gebruik as 'n
woning
deur
een
gesin, tesame
met
sulke
buite-geboue
as
wat
gewoonlik in
verband
daarmee
gebruik word,
op
die grond opgerig
word nie.
2
Tensy die skriftelike
toestemming
van die Administrateur
vooraf
verkry
is, mag die grond net vir woon-en- landboudoeleindes
gebruik
word".
22.
The property was acquired by Rosenkrantz not as his primary
residence, but as a home for occupation by his mother and
step-father.
Rosenkrantz states that he only spends week-ends on the
property. His intention was for the Goebels to farm strawberries, but
this
enterprise lasted for only three years. Since then, Mr and Mrs
Goebel had taken to renting out rooms in the outbuildings to various
tenants, thereby generating a monthly income of some R6 800,00.
23.
Despite the fact that the rental business was conducted from about
2000, the Municipality first took steps against Rosenkrantz
on 15
March 2012, following a site inspection on the same day by the
Development Planning Inspector, Mariana Wright ("Wright").
In a letter addressed by Wright to "The Owner/Occupier",
the complaint was articulated as the unlawful use of the property
"for the erection of illegal structures occupied by people
who pay rental
as
well
as
the conducting of a shebeen
causing a disturbance to the neighbourhood."
Rosenkrantz was
afforded 14 days within which to cease the illegal use and to restore
the property to its original purpose.
24.
Rosenkrantz denies having received this demand. And yet, in the same
affidavit, he mentions that he paid a visit to Wright's
office
subsequent to her letter of 15 March 2012. The purpose being to
"discuss the state of the impugned structure/buildings
....
Including certain sanitation concerns that were brought to my
stepfather's attention through the contents of the letter''.
He
asserts that Wright said that she was only concerned with
"the
state of the structures including the sanitary needs of the
occupants."
25.
He avers that, after the meeting, Mr Goebel
"improved the
structures and sanitation in the buildings by doing essential repairs
on the window frames.
" In so doing, he alleges that he was
under the impression that the Municipality's concerns were dealt
with. He proffers a
theory for the Municipality's launch of the
application as being the pressure brought to bear on it by a
neighbour, one Johan Botha,
who appears to have complained to the
Municipality about the tenants on the property.
26.
Nothing happened for over a year. Wright inspected the property again
on 25 April 2013. She compiled a report on 6 May 2013,
which
reiterated the continued illegal use of the property. The
Municipality's lawyers then addressed a letter of demand to
Rosenkrantz
on 4 November 2013. A demand was made for written
confirmation that the illegal use would immediately cease, failing
which, interdictory
relief would be sought. There was no response to
this demand. Rosenkrantz denies that either he or Mr Goebels, (whose
postal address
was cited in the letter), had received this demand. A
year later, on 10 November 2014, the Municipality launched this
application.
The hearing of this application occurred over four years
after the Municipality was first alerted to the situation, and about
sixteen
years after the tenants began to occupy the property.
27.
Rosenkrantz is flouting the law by permitting the unlawful use of his
property as a rental operation, when it is currently restricted
to
use by one family as a residence and for agricultural purposes. He
has made no effort to apply for the removal of restrictive
conditions
of title to expunge the conditions which he continues to offend.
Neither is it his stated intention to do so. He denies
that the
structures were unlawfully erected, chasing rather to put the
Municipality to the proof thereof. His denial is bare and
unsubstantiated.
28.
Generally, a respondent may not content himself with bare denials
unless there is no alternative and nothing more can be expected
of
him. See Room
Hire Co (Pty) Ltd v Jeppe Street Mansions
(
Pty)
Ltd
1949 (3) SA 1155
T at
1163
and
Wightman t/a
JW
Construction
v Headfour
(Pty)
Ltd
[2008] ZASCA 6
;
2008
(3) SA 371
SCA at 375G.
29.
Enquiries could and should have been made by Rosenkrantz to establish
whether building plans were ever approved. He does not
produce any
approved building plans, or the written consent of the Municipality
to erect these buildings. He has taken no steps
to make independent
enquiries about the structural integrity of the buildings and to
establish whether they comply with health
and safety standards,
whether in the interests of the tenants, or at all. He misconstrues
the Municipality's letter of March 2012
as relating only to
sanitation issues and asserts that he relied on his elderly
stepfather to remedy same, with no proof that Mr
Goebel had the
requisite expertise to fix the problem.
30.
Paradoxically, while being concerned about the potential homelessness
of his indigent tenants, on the one hand, he shows a casual
indifference towards the protection of their health and safety, on
the other. Albeit that there is no evidence of any adverse incidents
over the period of occupation by tenants, this fact simpliciter
cannot excuse him from his duty to examine the concerns of the
Municipality and the continuing illegality of his actions with a
modicum of responsibility.
31.
It appears that Rosenkrantz is invoking ESTA as a convenient
mechanism for flouting his legal duty to respect the conditions
of
title to which he bound himself when he acquired the property, and to
which he remains bound to date. This is an untenable state
of affairs
which no Court of law should countenance.
32.
This does not mean, however, that the constitutional rights of the
tenants on his property should be compromised as a result
of his
conduct. There is certainly no indication that the tenants are even
aware of the fact that their tenancy on the property
falls foul of
its conditions of title.
33.
The rental enterprise is unlawful, so it is inappropriate for
Rosenkrantz to rely on the
Older Persons' Act as
a legitimate pretext
for sanctioning his unlawful conduct. As an IT consultant employed at
Mobile Web Design, Rosenkrantz is presumably
earning a reasonable
income which would enable him to contribute more substantially
towards the support of the Goebels than the
medical aid premiums
currently paid by him. His income was certainly enough to justify his
obtaining a mortgage bond in the sum
of R740 000,00 in 2008. There is
no evidence that his financial position has deteriorated since then.
34.
The section relied upon by Rosenkrantz, being 25 (5) (a) of the
Older
Persons' Act, defines
an older person who is in need of care and
protection as one who
"has his
or her income,
assets
or old age grant taken against his or her
wishes or who suffers any other economic abuse."
35.
The reference to "income" can only mean income which is
lawfully earned. The section can admit of no other interpretation,
as
otherwise, Rosenkrantz would be asking the Court to sanction the
proceeds of unlawful activities, and to permit illegality to
trump
legality.
36.
The need for this Court to respect the rule of law dictates that
Rosenkrantz should not be permitted to hide behind the rights
of the
tenants and his mother and stepfather to avoid his duty to adhere to
the conditions of title, the Scheme, and the Building
Regulations
Act.
37.
The case of
United Technical Equipment Co v Johannesburg City
Council
1987 (4) SA 343
TPD
is of relevance. In this case,
the owner of property in Houghton had, without attempting to
establish whether such use was lawful,
proceeded to use the building
thereon for office purposes when the property was zoned for
residential use. In an application to
interdict the continued
unlawful use, the owner asserted that it intended to apply for the
removal of restrictive conditions of
title and that any interdict
should be suspended pending such application. The Court refused this
relief. At page 348H:
"
The respondent has not only
a
statutory duty but also
a
moral duty to uphold the law and to see to due compliance with its
town planning scheme. It would in general be wrong to whittle
away
the obligation of the respondent
as a
public authority to
uphold the law.
"
38.
Given the factual matrix at hand in this case, however, the matter is
not so simple. In its replying affidavit, which traverses
the points
in limine and other issues raised by Rosenkrantz, the Municipality
makes the following sweeping statements:
"The
facts and circumstances of the present matter clearly pertain to the
principle of legality and the enforcement of the
rule of law
......
the Applicant is legally obliged to enforce the rule of law. ....
the Respondent seeks the above Honourable court to condone the
continued illegal use of the property."
39.
While taking cognisance of Rosenkrantz' disregard for his legal
obligations vis a vis the Municipality, I am nevertheless constrained
to take account of the legal rights of the tenants on his property. I
cannot, as the Municipality expects, disabuse my mind of
their
constitutional rights. Pure common sense dictates that an order for
the demolition and removal of the unauthorised structures
on the
property will necessitate the prior, or accompanying, eviction of
these tenants. The Municipality argues that an adverse
order against
Rosenkrantz on his own would suffice because it would compel him to
cancel the leases with the tenants. Yet, on the
facts, the leases
appear to have been concluded between the Goebels and the tenants,
and the Goebels have not been cited as co-respondents.
For this
reason, it would be necessary to join them to the proceedings.
40.
In
Motswagae and Others v Rustenburg Local Municipality and
Another
2013 (2) SA 613
CC
.
the Municipality had,
without a court order, commenced construction work which involved
excavation with a bulldozer. This took place
near the wall of one of
the applicant's homes, exposing its foundations. The Constitutional
Court granted a prohibitory interdict
against the Municipality,
enforceable unless and until it obtained a court order or written
consent from the landowner. At par
12, the Court said:
''The
underlying point
is
that an eviction does not have to consist
solely in the expulsion of someone from their home. It can also
consist in the attenuation
or obliteration of the incidents of
occupation."
41.
The tenants on Rosenkrantz's property plainly have a direct and
substantial interest in the subject matter of the application,
as
their interests may be prejudicially affected by an adverse judgment
of this Court. As such, they are necessary parties.
42.
Tenants were considered as necessary parties in the case of
Rosebank
Mall (Pty) Ltd and ano v Cradock Heights (Pty) Ltd
2004 (2) SA 353
WLD
,
a decision of the full bench of the then WLD. In
this case, the Court accepted that the terms of a co-operation
agreement had been
breached. One of the parties had permitted the
unlawful erection of structures in areas then occupied by several
restaurants, contrary
to the co-operation agreement, which
contemplated that these areas would be made available for pedestrian
use. The Court found
that it was necessary to join the tenants in an
application to demolish and remove the structures. It was found that
the tenants,
while not parties to the co-operation agreement, had
acquired rights of possession, aliunde the agreement, from the owner
and possessor
of the areas leased. These rights would be
"adversely
affected if the demolition order or the interdict were carried into
effect."
(vide p373 par 38 H-1).
43.
The joinder of SA Home Loans, the mortgagee of the property in casu,
is another aspect to consider. This because it also has
a substantial
interest in the matter. It has real rights, the value of which may be
affected by the demolition of the structures.
Vide:
The
Standard Bank of South Africa Ltd v Swartland Municipality and others
2011 (5) SA 257
A
in which the Court, while recognising the
interest of the bondholder, nevertheless found that the bondholder's
rights per se did
not found a defence to an application arising from
the unlawful erection of buildings. It may be necessary for SA Home
Loans to
address the question as to why it extended the loan facility
to Rosenkrantz when, by the exercise of diligence, it could or should
have known that certain of the buildings were not lawfully erected,
this because it is the usual practice for a financial institution
to
inspect property which is offered as security for a loan before the
loan is granted.
44.
The rule of law and doctrine of legality apply as much to the rights
of occupiers of land and buildings as to the duty to respect
the
permissible usage of land. As a result of our constitutional
dispensation, a plethora of legislation has come into being to
protect the rights of both lawful and unlawful occupants of land in
South Africa, and those who were previously dispossessed of
such
rights. The
Restitution of Land Rights Act, 22 of 1994
, which
commenced on 2 December 1994, came into being to protect the rights
in land to persons dispossessed of such rights after
19 June 1913 as
a result of past racially discriminatory laws. The Land Reform
(Labour Tenants) Act 3 of 1996 was enacted to provide
for security of
tenure of labour tenants and those persons occupying through them.
ESTA was designed to regulate the eviction of
vulnerable and
impecunious occupiers of rural and semi-rural land "in a fair
manner." The PIE Act (The
Prevention of Illegal Eviction From
and Unlawful Occupation of Land Act, 19 of 1998
), is also designed to
process the eviction of unlawful occupiers in a fair manner, and to
provide alternative accommodation, insofar
as is feasible, to those
who become homeless as a result of their eviction.
45.
The question arises as to whether the tenants in casu are unlawful or
lawful occupiers. In this case, the consent of the owner
is an
established fact, and the issue of legality hinges on the consent of
the owner. I am fortified in this stance by the definition
of
"occupier" in
section 1
(1) of ESTA, which defines an
"occupier'' as
"a
person residing on land
which belongs to another person. and who has or on 4 February 1997 or
thereafter had consent or another
right in law to do
so...
."
(my emphasis)
46.
In the result, the provisions of ESTA would apply in casu. In terms
of
section 2(1)
of ESTA, this Act applies to all land, other than
land in a township, including any land within such a township which
has been
designated for agricultural purposes in terms of any law.
The property in question falls within this definition. Section 11
covers
the process required for orders for the eviction of persons
who become occupiers after 4 February 1997. On the uncontradicted
version
of Rosenkrantz, the tenants started to take occupation circa
2000. Section 12 mentions the further requirements to be complied
with so as to honour the precept of fair process. Under section 17
(1), legal proceedings may be brought in either a Magistrates'
Court
having jurisdiction, or in the Land Claims Court. In terms of section
17 (2), proceedings may be brought in the High Court
provided that
all the parties consent thereto. Not all of the interested parties
have consented to the jurisdiction of the High
Court.
47.
The provisions of ESTA were of consequence in the case of
Mkangeli
and Others v Joubert and Others
2002 (4) SA 36
SCA
.
The
respondents on appeal, being landowners in the immediate vicinity,
had applied for an order to remove the appellants and their
dwellings
on a neighbouring property in a semi-rural area northwest of
Johannesburg. This because the land was being used contrary
to the
town-planning scheme and the respondents were an unlawful nuisance.
The Court found that a non-owner has the locus standi
to bring an
eviction application in terms of ESTA, since ESTA contained no
express prohibition against this.
48.
The issue was whether a non-owner could succeed in an eviction if the
owner refused to terminate the occupier's occupation.
The SCA held
that such a non-owner could seek an order to compel the owner to
withdraw his consent and then to take the necessary
steps under ESTA
to secure the eviction. At paragraph 16 of the judgment, Brand, JA
says:
"There
is no suggestion that any of the parties to the present matter
consented to the jurisdiction of the High Court. It follows
that if
the appellants are correct in their contention that the matter is
governed by the provisions of ESTA, it must be accepted
that the
court
a
quo had no jurisdiction to grant an order for the
eviction of the appellants and for that reason alone the appeal must
succeed."
49.
The SCA in
Mkangeli
at para 21 gave guidance as to how a
non-owner of property (such as a neighbour, or, in casu, a
Municipality) might succeed in causing
the occupier's eviction under
ESTA:
"On
the assumption that the non-owner/applicant has the right to seek the
eviction of the occupier, but he can only do
so
with the
cooperation of the owner, I can
see
no reason why he cannot
join the owner in an eviction application under
ESTA
His
relief sought against the owner will effectively be for an order
compelling him to withdraw his consent - in accordance with
the
provisions of ESTA
-
and to take such steps
as
he can
under ESTA to cause the eviction of the occupiers from his land."
50.
My attention was drawn by the Municipality to the case of
Lester
v Ndlambe Municipality 2013 JDR 1841 SCA
in which the
demolition of an unlawfully erected home worth about RB million, at
the behest of the local authority, was ordered.
This is immediately
distinguishable from the present case, because the home-owner and
only occupier in
Lester
did not suggest that the
demolition would render him homeless and destitute.
51.
The
Lester
case implies, however, that the Court
is indeed vested with a constitutional discretion where the rights of
occupants who may be
rendered homeless by the demolition are
affected. At para 26, the following statements are of direct
relevance to the issues in
this case:
"
Local government, like all other organs of state, has to exercise its
powers within the bounds determined by the law and
such powers are
subject to constitutional scrutiny, including
a
review for
legality."
52.
The limitations on the exercise of powers by public bodies were
enunciated in
Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC)
at
para 40:
''These
provisions (ie
ss
174 (3) and 175 (4) of the Constitution)
imply that
a
local government may only act within the powers
lawfully conferred upon it. There is nothing startling in this
proposition
-
it is
a
fundamental principle of the rule
of law, recognised widely, that the exercise of public power
is
only legitimate where lawful. The rule of law
-
to the
extent at least that it expresses this principle of legality
- is
generally understood to be
a
fundamental principle of
constitutional law."
53.
The Municipality's Counsel proposed that I might grant an interdict
yet suspend its operation for a short period to enable Rosenkrantz
to
cancel the leases. I was referred to
410 Voortrekker Road
Property Holdings CC v Minister of Home Affairs and others
(2010) 4
All SA 414
WCC.
Here, an interdict was granted to
prevent the Department of Home Affairs from operating a refugee
reception office, in contravention
of the title deed conditions,
unless and until the applicable land use restrictions were amended,
so as to permit the lawful operation
of the office at the premises.
The building in question was not a residence for any occupants. It
was an office. The rights of
residential tenants did not come into
the enquiry.
54.
In any event, I align myself with the ratio in both
Peri-Urban
Areas Health Board v Sandhurst Gardens (Pty) Ltd
1965 (11 SA 683
T
and United Technical Equipment Co v Johannesburg City Council
1987
(4) SA 343
TPD
,
in which the Court found that it had
no general discretion to suspend the operation of an interdict
against illegal land use where
the wrong complained of amounted to a
crime. Both of these cases were cited with approval in the
Lester
judgment.
55.
The Municipality ought to have been aware of the constitutional
imperatives attached to its claims against Rosenkrantz when
Wright's
inspection occurred in March 2012, and this was confirmed on delivery
of Rosenkrantz' answering affidavit in this application.
Yet it
persisted in professing that it was not seeking the eviction of the
tenants, when in fact it was. It had to be. No other
inference may be
drawn.
56.
In argument before me, it insisted that to refuse to entertain its
claim would amount to condonation of illegal conduct, and
a disregard
for the rule of law. Yet it has shown no concern for the rights of
the numerous tenants who may be rendered homeless
in the process of
its demolition order being enforced. What it wants to do is to
demolish the tenants' homes. It has made no tender
for emergency
alternative accommodation for them as against the enforcement of the
order.
57.
In the case of
Free State Province v Terra Graphics (Pty)
Ltd
2016 (3) SA 130
SCA,
the Court had the following to say
about the legality principle being invoked by a provincial
government:
"Ironically,
it (the Government) relied on the principle of legality to avoid
honouring agreements that it had authorised.
It hardly requires any
imagination to consider what members of the public would make of such
behaviour."
58.
On the duty of the State, and, by necessary implication, this duty
would apply equally to that of a municipality, the Constitutional
Court made the apposite comment in
Mohamed and Another v
President of the RSA and Others
2001 (31 SA 893
(CC) at par 68:
"South
Africa is
a
young democracy still finding its way to full
compliance with the values and ideals enshrined in the Constitution.
It is therefore
important that the State lead by example. This
principle cannot be put better than in the celebrated words of
Justice Brandeis
in
Olmstead et al v United States
:
"In
a government of laws, existence of the government will be imperiled
if it fails to observe the law scrupulously ......Government
is the
potent, omnipresent teacher. For good or for ill, it teaches the
whole people by its example.....lf the government becomes
the
lawbreaker, it breeds contempt for the law; it invites every man to
become a Jaw unto himself; it invites anarchy.
"
59.
This is a case in which it may safely be argued that Rosenkrantz
should share some responsibility for the relocation of the
tenants if
the Municipality is granted its order in due course, in a Court with
jurisdiction to entertain the case.
60.
Based on the applicability of ESTA to the facts in casu, this Court
has no jurisdiction to hear an application which, if granted,
will
cause, as a concomitant and necessary incident, the eviction of
tenants who are occupying agricultural land with the consent
of the
owner. On this ground simpliciter the application must fail.
61.
Moreover, and albeit that the jurisdictional issue disposes of the
case in this Court, so that the issue for present purposes
is
academic, it will be necessary in due course for the Municipality to
join all tenants residing on the property, and the Goebels,
and
possibly the bondholder, as interested parties to any such
proceedings.
62.
I turn to the question of costs.
A C Cilliers. The Law of
Costs. Lexis Nexis, issue 32, September 2015, at par. 2.08. page 2-12
has this to say on the subject:
"The
general principle regarding the award of costs is we/I-settled. It is
entirely
a
matter for the discretion of the court which is to
be exercised judicially upon
a
consideration of the facts of
each case and in essence it is
a
matter of fairness to both
sides."
63.
In the exercise of its discretion, the Court is obliged to take
cognisance of the general rule that a successful litigant is
entitled
to his/her costs. Its overriding discretion must be judicially
exercised, having regard to the facts germane to the enquiry.
64.
There is a well-founded basis for departing from this rule in this
case. In equal measure, both parties have shown a level of
impunity
towards the application of the rule of law.
65.
To award costs in favour of a successful party who is continuing to
offend the law and has made no effort to address this conduct
would
be inappropriate. The defence raised by Rosenkrantz is substantially
dilatory in nature as it remains open to the Municipality
to pursue
its case in the Magistrates' Court or the Land Claims Court. On the
merits, he remains in breach of the law.
66.
His attitude is more than adequately borne out by an absence of any
tender to remedy the situation on a permanent basis, other
than to
protest a rather insincere concern for the tenants on his property,
whose security of tenure continues to remain imperilled.
67.
Despite the Municipality failing in this application, it would be
inequitable to penalise it with an award of costs. Each party
should
bear its own costs of suit.
68.
The following order is made:
a.
the application is dismissed;
b.
each party shall bear its/his own costs of suit.
----------------------------
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
6 June
2016
Appearances:
Counsel for the
Applicant: Advocate
Botha
Instructed
by: Attorneys
du Plessis de Heus and Van Wyk
Counsel for the
Respondent: Advocate
W S Britz
Instructed
by: Manfred
Jacobs Attorneys