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[2016] ZAGPPHC 881
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Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant and Others (67856/14) [2016] ZAGPPHC 881 (22 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, PRETORIA
22/9/2016
CASE
NO: 67856/14
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
TSHWANE
UNIVERSITY
TECHNOLOGY Applicant
and
ALL
MEMBERS OF THE CENTRAL STUDENT
REPRESENTATIVE
COUNCIL OF THE APPLICANT 1
st
Respondent
ALL
MEMBERS OF THE PRETORIA LOCAL STUDENT
REPRESENTATIVE
COUNCIL OF THE APPLICANT 2
nd
Respondent
ALL
MEMBERS OF THE GARANKUWA LOCAL STUDENT
REPRESENTATIVE
COUNCIL OF THE APPLICANT 3
rd
Respondent
ALL
STUDENTS AND PERSONS RESIDING IN THE
RESIDENCES
OF THE APPLICANT'S PRETORIA WEST
AND
GARANKUWA
CAMPUSES 4
th
Respondent
JUDGMENT
WENTZEL
AJ
Introduction
1.
This is an application that arose as a result of the closure of the
residences at all of the applicant's campuses as a result
of the
violent student protests regarding the lack of NSFAS-funding that
erupted during September 2014. During these protests,
buildings were
destroyed, cars were torched and students and workers were
intimidated by militant students leading the protests.
2.
Many of these students resided in student residences and it seems
that to quell the protests and the violence, a decision was
taken to
obtain an urgent
ex parte
court order on 12 September 2014 to
evict the students from its Pretoria West and Ga-Rankuwa campuses,
which was, after the protests
and violence had apparently died down,
not acted upon. When the violence erupted again and it was feared it
would spread to its
other campuses, the applicant's Council took a
decision on 20 September 2014 to close the residences at all of its
campuses and
issued a directive, by the distribution of leaflets and
social media, that students vacate their residences by 5 pm that day
and
employed security guards to forcibly remove those student who
failed to adhere to this directive. This decision left many students
homeless and stranded unable to afford to return home.
3.
The respondents contend that this amounted to an unlawful eviction of
the students in breach of section 26(3) of the Constitution
and a
breach of the prior court order obtained on 12 September 2014 to
evict the students on two of its campuses, its Pretoria
West and
Garankuwa campuses, provided that it afforded the evicted students an
opportunity to sign an undertaking renouncing violence
which would
entitle them to return to their residences.
4.
The applicant disputed this averring its decision to close all of its
residences was not taken in in terms of the Court Order,
but rather
was an administrative action taken to protect the safety of its
student body, staff and property. It avers that its
decision did not
amount to an
"eviction"
but rather an
"evacuation"
of the students in a state of emergency. It avers further that in
taking the decision, it merely decided to bring the October vacation
10 days early and was thus not an eviction as the students would have
been required to vacate the residences and return home in
any event.
5.
Mister Yster Dladla ("Dladla"), as President of the Central
Student Representative Council at the time, the CSRC, rushed
to court
on 25 September 2014- represented by Lawyers for Human Rights
purporting to represent the students, and sought to
intervene and
anticipate the prior eviction order which had been granted in the
form of a
rule nisi.
He also sought, by way of a
counter-application,
inter alia,
a declaratory order that the
mass eviction of the students from the applicant's residences be
declared unlawful.
6.
I am told that at Court, the applicant's counsel undertook to allow
the students to return to their residences should they sign
the
undertaking contemplated in terms of the prior eviction order. The
matter was thereafter struck from the roll, I am told, both
for lack
of urgency and Dlaldla's lack of
locus standi
. The Court also
apparently took the view that the applicant's actions had been
justified in view of the violent and destructive
nature of the
protests.
7.
Although I am told that leave to appeal this ruling was sought, I
have not been told what the result hereof was. The question
of
Dladla's
locus standi
was then
ex post facto
cured when
the respondents adopted a resolution confirming Dladla's mandate to
represent the respondents. This issue was also resolved
by this Court
in related proceedings between the parties, dealt with by me more
fully hereinafter, reported as
Tshwane University of Technology v
Dladla
(8104/2014)[2015]ZAGPPHC). However, it is averred that
Dladla is competent to act in his personal capacity in a class action
by
the students at all of the students who reside in residences at
all of the applicant's campuses in the public interest in terms
of
section 38(d) of the Constitution and he persists in his application
to do so.
8.
It is common cause that by the time this matter was argued, the
student protests had been resolved and all of the students had
returned to their residences. As such there was no need for the
respondents to persist with the relief sought in prayers 3 and
4 of
their counter-application directing the applicant to restore
possession and occupation to the residence students at its
Shoshanguwe,
Polokwane,Mbombela and eMalahleni campuses, which had
not been covered by the 12 September 2014 Order and at its Pretoria
West
and Rarankuwa campuses, which had. As such, it was common cause
that the spoliation proceedings had, since the launching of the
counter-application, been rendered moot.
9.
The respondents, however, persisted with prayers 2,5,6 and 7 of their
counter-application:
9.1 granting Dladla leave
to intervene;
9.2 declaring the mass
eviction of the residence students of all of the applicant's campuses
without notice and without affording
the such students an opportunity
to be heard, is unconstitutional, and that the applicant be
interdicted and restrained from such
further evictions without
following a lawful course;
9.3 declaring the
applicant in contempt of the
ex parte
order;
9.4 costs of the
counter-application on the attorney and own client scale.
10.
The respondents argued that these issues were not moot inasmuch as
they remained entitled to an order discharging the
rule nisi
and
dismissing the applicant's application for eviction with attorney and
client costs as it had improperly been brought
ex parte
without
disclosing material facts to the court and in breach of the
principles enshrined in the Constitution. The respondents also
aver
that they is entitled to an Order declaring that in evicting the
students from the Pretoria West and Ga-Rankuwa campuses,
the
applicants had acted, albeit only for a period of 5 days, in contempt
of the explicit terms of the Court Order obtained on
12 September
2015 requiring it to afford the students at least at theses campuses
the opportunity to return to their residences
should they sign an
undertaking renouncing violence. With regard to the other 4 campuses,
it is averred that the applicant acted
unlawfully in evicting the
students without an Order of Court.
11.
The
respondent's however, go further: Whilst they do not request the
court to make declaratory orders concerning the issues raised
in its
Rule 16 A notice
[1]
, they
nevertheless seek a declaratory order, for the purpose of precedent,
that the eviction on 20 September 2014 was unconstitutional
and
illegal. They also seeks a blanket interdict that the applicant be
interdicted and restrained from further evictions of its
students
from any of the residences without following a lawful course.
MOOTNESS
12.
It is trite that Courts do not pronounce on matters that are academic
purely for the purpose of precedent.
13.
The respondents, however, argue that where constitutional issues are
at stake, this does not apply. A similar argument was recently
raised
in this Court in
Comair Ltd v Minister of Public Enterprises and
Others
2016 (1) SA 1
(GP) which involved a decision by government
to grant financial assistance to the beleaguered SAA (which was then
insolvent) which
the applicants sought to set aside and review
declare to be unconstitutional and unlawful,
inter alia,
as it
allowed it to unfairly compete with its competitors. It also sought
an order akin to the blanket interdict in this case that
"the suspension
of the setting-aside of the guarantee decision for a period of six
months, during which time, to the extent
that the government decides
to grant any financial assistance to SAA, it is to do so in the light
of the findings of this court's
judgment."
14.
In addition the applicant also sought to bind the future conduct of
the government and sought"[a]n
order that if the ministers
and the government contemplate granting any financial assistance to
SAA during the two-year period contemplated
in the guarantee
-
[5.4.1] such
assistance must comply with government's DATP;
[5.4.2] they must file
a proposal setting out the form that the financial assistance is
intended to take, the procedure to be followed
in providing that
assistance and any conditions attaching thereto; and
[5.4.3] the court may,
at Comair's instance, determine whether the proposal complies with
the judgment and order of this court.
"
15.
Prior to the hearing of the matter, the government had taken a
decision to perpetually extend this guarantee while the long-term
turnabout strategy was finalised and implemented. As a result, the
applicant's amended their notice of motion to attack this extended
guarantee on a similar basis.
16.
By the time the matter was heard, it was common cause that the first
decision that Comair attacked, and sought to review and
interdict,
had expired and had been replaced. Accordingly the relief sought in
prayer 1.1 of the amended notice of motion declaring
that the
decision to provide the initial guarantee was unconstitutional was
moot - not only because the 2012 guarantee had expired
by effluxion
of time, but also because it had been replaced by the perpetual
guarantee. Nevertheless, Comair persisted in seeking
relief in regard
thereto and raised three key questions, amongst them Constitutional
issues which it asked the court to decide-
16.1. When is it lawful
for government ministers to bind the fiscus by granting significant
guarantees to state-owned companies?
16.2. In the light of the
government's DATP, when, and in what manner, is it reasonable,
rational and procedurally fair for the
government to give financial
assistance to state owned airlines?
16.3. On the facts of
this case, was it lawful and in accordance with the principles of
just administrative action, the principle
of legality, and the Bill
of Rights, for SAA to be provided with a R5 billion guarantee?
17.
Comair argued that even if prayer 1.1 of the amended notice of motion
were technically moot, it would nevertheless be in the
interests of
justice for the court to determine the matter. It accepted that the
case was moot if it no longer presented a live
controversy, but
sought to invoke issues of extended standing under s 38 of the
Constitution to circumvent the argument advanced
with regard to
mootness.
18.
In dealing with this, Fabricious J set out the legal principles
pertaining to mootness which are of equal import to this case:
"[
13]
........
It
was obvious that there is no live claim for restitution in the
respect of the first guarantee. The order sought in prayer 1.1
was
also neither forward- looking nor general in its application. See
Director-General Department of Home Affairs and Another v
Mukhamadiva
2014 (3) BCLR 306
(CC).
[14] It is clear that
the relevant principle is that courts should not decide matters that
are abstract or academic, and which do
not have any practical effect,
either on the parties before the court or the public at large.
Courts
of law exist to settle concrete controversies and actual infringement
of rights. and not to pronounce upon abstract questions,
or give
advice on differing contentions
. The same principle has
been stated to mean that one should rather not deal with vague
concepts such
as
'abstract', 'academic' and 'hypothetical'
as
yardsticks.
The
question rather ought to be
a
positive one. ie whether
a
judgment or order of court will have
a
practical effect. and not whether it will be of
importance for
a
hypothetical
future case
. See Premier, Provinsie Mpumalanga, en 'n Ander v
Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA)
at 1141E. In
National Coalition for Gay and Lesbian Equality and Others v Minister
of Home Affairs and Others
2000 (2) SA 1
(CC)
(2000 (1) BCLR 39
;
[1999] ZACC 17)
para 21 it was said that
a
matter is
moot and not justiciable if it no longer presents an existing or live
controversy. This seems to be the most practical
and decisive
question
. Mr Gauntlett submitted that were prayer 1.1 of the
amended notice of motion to be granted, there would be no practical
effect.
There was no utility in the order, and no benefit in
pronouncing on any of the issues in relation to it. The controversy
regarding
the legality of the first decision would itself be resolved
by adjudicating on the second decision.
[15] Also, the
elaborate remedial relief sought (including the suspension of setting
aside that which had already lapsed) cannot
conceivably have any
practical effect. It would be an elaborate academic exercise. I agree
with this submission. Mr Unterhalter
SC,
on behalf of Comair,
submitted that I need to take into account the so-called Oudekraal
principle, ie the one in Oudekraal Estates
(Pty) Ltd v City of Cape
Town
2004 (6) SA 222
(SCA) ([2004]
3 All SA 1
;
[2004] ZASCA 48)
para
31.
The principle articulated in that judgment is that
a
successful challenge to
a
previous administrative decision
does not automatically result in nullity of
a
subsequent
administrative decision. The court will still have to determine
whether the perpetual guarantee should be set aside in
this
particular context.
[16] The legal
validity of the 2012 guarantee is not a precondition for the 2013
guarantee. Validity of the former does not bear
on the latter.
Neither the subsequent decision nor its empowering provision rests on
the legal validity of the initial decision.
The legal foundation for
the second decision is s 70 of the PFMA, and not the existence of the
first decision. The 2013 decision,
which was subject to its own
conditions, supplanted the 2012-guarantee decision. Comair also
relied upon the interests of justice
in this context, which Mr
Gauntlett classified as the assertion of
a
backstop. The
argument was flawed, because the fact that it has a bearing on the
interests of justice does not militate in favour
of entertaining
prayer 1.1 in circumstances where this would
almost duplicate
much of the judicial resources to be expended on determining
prayer 1.2...
[17] I agree with the
contentions advanced by counsel for the first and second respondents.
The attack on the issue of the first
guarantee and the relief sought
in that context
are in my view moot in the sense that there
would be no utility in the order. and no benefit in pronouncing on
any of the issues
in relation to it. Any order in this context would
have no practical effect on either of the parties or others.
I
therefore do not intend dealing any further with any of the arguments
advanced in respect of the original notice of motion, although
I
appreciate that there would be
a
lot of overlapping when I
deal with the arguments pertaining to the extended guarantee".
(emphasis added).
19.
I agree with this approach. It is not the function of the courts to
make declaratory orders for precedent purposes, particularly
almost 2
years after the events giving rise to the matter have been resolved
and the students have been permitted to return to
their residences.
In this respect, I point out that heads of argument were filed in
this matter during August 2015 and there is
no explanation why the
matter was not persisted with and why it is sought to persist with
the matter, now yet another year later.
The function of the Courts is
to provide meaningful and effective justice to all, not to make
political statements.
20.
In the leading case of
Minister of Mineral Resources and Others v
Sishen Iron Ore
Co
(Pty) Ltd and another
2014 (2) SA 603
(CC) the Constitutional Court held that a case-
"is moot and
therefore not justiciable if it no longer presents an existing or
live controvercy which should exist if the court
is to avoid giving
advisory opinions on abtract propositions of law. "
21.
The
rule nisi
granted on 12 September 2014 is no longer
practically in effect and there is no purpose in the Court
considering whether it should
be discharged and the application
dismissed save solely for determination of the question of costs,
which are sought on the attorney
and client scale. Similarly, the
legality and constitutionality of the applicant's decision to close
the residences on 20 September
2014 in the manner in remains a live
issue only with regard to the question of costs.
22.
I also do not believe that there is any basis for me interdicting the
applicant from evicting the students without following
a lawful
course. This cannot be pronounced upon in a vacuum and I am not
empowered to interdict a future hypothetical event. What
would or
would not amount to a lawful course would depend on the particular
circumstances of each case and I am not prepared to
bind further
courts to the nightmare of having to interpret what was meant by such
an order in the event of circumstances arising
requiring that the
residences be closed or students be removed from their residences.
23.
To my mind, it is not the function of the courts to make blanket
interdicts. What the respondents in a sense want is restraining
order
to preclude any decisions to close the residences without a Court
Order. It is a matter of law that this must be done lawfully
and no
Order declaring this is necessary. If this is done unlawfully in the
future, the respondents will have recourse to the courts.
24.
What remains only to consider for present purposes, therefore, is
whether:
24.1. the
rule nisi
obtained on 12 September 2014 was improperly sought
ex parte
solely for the purposes of determining the question of costs;
24.2. the applicant acted
unlawfully in closing the residences on 20 September 2016 without
recourse to the courts solely for the
purposes of costs;
24.3. in failing permit
the students to return to their residences should they sign a
disclaimer denouncing violence, the applicant
acted in contempt of
the
Court
Order obtained on 12 September 2014;
24.4. an order of
attorney and client costs would be appropriate;
24.5. Dladla is entitled
to intervene in his personal capacity in the public interest in terms
of section 28(c) of the Constitution
..
25.
In so doing it is stressed that it is not incumbent on the courts to
deal fully with the merits when they are considered only
for the
purposes of costs
(Jenkins v SA Boiler Makers, Iron
&
Steel Workers
&
Ship Builders Society
1946 WLD 15
;
Gans v Society for the Prevention of Cruelty to
Animals
1962 4 SA 543
(W) 545;
Garn/an Investments
(Pty) Ltd v Trillion Cape (Pty) Ltd
1996 3 SA 692
(C) 7031-704C;
First National Bank of Southern Africa Ltd tla Wesbank v First
East Cape Financing (Pty) Ltd1 999
4 SA 1073
(SE)
10791-1080F.)
26.
In saying this, however, I am mindful that I have been asked to find
that section 26(3) of the Constitution is applicable to
the eviction
of students residing in residences requiring that they may not be
evicted without a court order, which is an aspect
that I will deal
with below. Although I do not believe that it is necessary for me, in
so doing, to grant any declaratory relief
to this effect where this
is no longer a live issue between the parties, I do intend to deal
with this aspect in the course of
my judgment in the public interest.
27.
In
Director of Public Prosecutions, Transvaal v Minister of
Justice and Constitutional Development and Others
[2009] ZACC 8
;
2009(7) BCLR 637 (CC) at para 40 it was indicated that even where an
issue does not have immediate impact on the parties' positions,
a
court may deal with an issue if
"its immediate resolution
will be in
the public interest
. This is an approach also
adopted by Van der Westhuizen J in
Zulu and Others v e Thekwini
Municipality and Others
2014 (4) SA 590
(CC) at [51]. Referring
to the
Minister of Justice
case (supra) Van der Westhuizen J
stated :
"
This court
has
found that even when
a
decision lacks practical value to
the parties before the Court, there are circumstances in which it may
be in the interests of justice
to determine
a
matter for
broader public benefit. It
has a/so
on occasion noted that
"
the litigants before the Court should not be singled out for the
grant of relief, but relief should be afforded to all people who
are
in the
same
situation
as
the litigants" .
(footnotes omitted).
28.
On this basis, Van der Westhuizen found that a decision by the
Constitutional Court would benefit not only those in a similar
situation to the shack dwellers who averred they had been evicted by
the eThekwini Municipality (who had demolished their shacks
and
sought to relocated the residents without a Court Order allegedly
because the land on which they were built was unstable and
dangerous), but also the public at large.
29.
In
Independent Electoral Commission v Langeberg Municipality
(CCT 49/00)
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) (7 June 2001), this Court, per Yacoob J and Madlanga AJ, held
that:
"[T]he Court has
discretion to decide issues on appeal even if they no longer present
existing or live controversies. That
discretion must be exercised
according to what the interests of justice require. A prerequisite
for the exercise of the discretion
is that any order which the Court
may make will have some practical effect either on the parties or on
others. Other factors that
may be relevant will include the nature
and extent of the practical effect that any possible order might
have, the importance of
the issue, its complexity and the fullness or
otherwise of the argument advanced."
See
also
Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa
[2004] ZACC 24
;
2005 (4) SA 319
(CC) at
para 22 and
Sv Bhulwana; S v Gwadiso
[1995] ZACC 11
; 1996(1)
SA 388 (CC) at para 32.
30.
Similar considerations apply to the present matter. Although this is
no longer a live issue between the parties, events have
unfolded
which have rendered this very much a live issue in the face of the
violent student protests that have, during the course
of my
preparation of this judgment, again erupted at universities
throughout the country. Indeed, it would seem that the month
of
September appears to be a key time for student protests: Since the
student protests over NSFAS funding during September 2014
which
sparked the current application, student protests again erupted over
funding during September 2015 under the banner
"Fees Must
Faff'
and have now again erupted in September 2016 following
protests as a result of the intended fee hikes proposed by the
universities
with the students insisting that tertiary education
should be
"Free For Alf' .
31.
The current protests have become increasingly violent and I expect
that issues will again arise regarding the safety and security
of
those students housed in student residences who may need to be
"evacuated'
and the question whether the violence could
be dissipated by
"evicting"
those students involved
in the violence as a way to get the instigators off campus.
32.
As the question of free education is a complex political issue that
it is not anticipated will be readily resolved, it is suspected
that
student protests will continue around this issue for many years to
come until this issue is resolved. This has also not been,
and will
not be, the only issue that will incite student protests and it is
expected that many further issues will arise that may
spark violent
protests. That being the case, the question whether students may be
"evacuated'
or
"evicted'
without a Court
Order is a live issue not only to the parties presently before Court,
but also to the many university students throughout
the country who
reside in residences as well as those in charge of the Universities
that house them.
33.
Bearing this in mind, I will deal with the issues between the parties
ad seriatim.
Was
the 12 September 2016 eviction order improperly sought
ex
parte
?
34.
The respondents aver that the 12 September 2016 order was improperly
sought
ex parte
and falls to be set aside both because :
34.1. material facts were
disclosed; and
34.2. it is contrary to
constitutional percepts that eviction orders be granted
ex parte.
35.
Again with regard to the latter contention, the remarks of Fabricius
J in the
Comair matter
(
supra)
at paragraph [50] are
apposite:
"Comair in this
context relies on the provisions of
s
9(1) and s 22 of the
Constitution. Mr Gauntlett contended that because of the operation of
the doctrine of avoidance and the principle
of subsidiarity, this
challenge
does
not properly arise. There
is
no doubt in
our law that where it
is
possible to decide any case, civil or
criminal, without reaching a constitutional
issue,
that
is
a course which should be followed. See S v Mhlungu and Others
1995
(3) SA 867
(CC)
(1995 (2) SACR 277
;
1995
(7) BCLR 793
;
[1995]
ZACC 4)
para
59;
and Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC)
(1997 (6) BCLR 692)
para 21. In New Clicks supra
[21] para 437 the following
was
said F in this context:
'Where,
as
here,
the Constitution requires Parliament to enact legislation to give
effect to the constitutional
rights guaranteed in the
Constitution, and Parliament enacts such legislation, it will
ordinarily
G
be impermissible for a litigant to found a cause
of action directly on the Constitution without alleging that the
statute in question
is
deficient in the remedies that it
provides. Legislation enacted by Parliament to give effect to
a
constitutional right ought not to be ignored. And where
a
litigant founds
a
cause of action on such legislation, it
is
equally impermissible for
a
court to bypass the
legislation and to decide the matter on the basis of the
constitutional provision that is being
given effect to by the
legislation in question.'
Accordingly, in
relation to s 9 of the Constitution, applicant had to make out
a
case justiciable before this court in terms of the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
. In
relation to
s 22
, in the light of the pleadings, the applicable
legislation would be the
Competition Act 89 of 1998
. I agree with
this submission . ... .."
36.
On this approach, should I be able to decide whether the 12 September
2016 Order was improperly sought and should be discharged
and the
application dismissed on the basis of the strict Rules pertaining to
ex parte
applications was breached, that should be done and it
is not my function, for precedent purposes, to express a view on the
constitutionality
or otherwise of seeking eviction orders without
notice unless this is a matter of public interest.
37.
That being said, I am enjoined first to consider whether the
applicant was entitled to approach the Court for an
ex parte
eviction order in this case.
38.
In commenting on the requirements of good faith in
ex parte
applications,
Erasmus. Superior Court Practice
states at
RS 2, 2016, 01-62
"Good faith is
a
sine qua non in ex parte applications. If any material facts are
not disclosed, whether they be wilfully suppressed or negligently
omitted, the court may on that ground alone dismiss an ex parte
application. The court will also not hold itself bound by any order
obtained under the consequent misapprehension of the true position.
Among the factors which the court will take into account in
the
exercise of its discretion to grant or deny relief to a litigant who
has been remiss in his duty to disclose, are: the extent
to which the
rule has been breached; the reasons for the non-disclosure; the
extent to which the first court might have been influenced
by proper
disclosure; the consequences, from the point of doing justice between
the parties, of denying relief to the applicant
on the ex parte
order; and the interest of innocent third parties such as minor
children, for whom protection was sought in the
ex parte application.
" ( footnotes omitted)
See also
MV
Rizcun Trader v Manley Appledore Shipping Ltd
2000 (3) SA 776
C)
39.
Should this principle be breached, the court will mark its
displeasure by making a punitive order for costs. In
Schlesinger v
Schlesinger
1979 (4) SA 342
(W) an order obtained
ex parte
was
set aside with costs on the scale as between attorney and client
against the applicant for displaying a reckless disregard of
a
litigant's duty to a court to make a full and frank disclosure of all
known facts that might influence the court in reaching
a just
conclusion.
40.
The respondents aver that this duty was breached justifying a
punitive order as to costs by the applicant in failing to disclose
that it had been found to have illegally evicted its students during
January that year and that not only had an anti- eviction
order been
granted against it and it had been ordered to immediately allow the
students to return to their residences. It also
failed to disclose
that it been called upon to show cause why it should not be found to
have acted in contempt of that order and
that Jansen J had granted
Dladla an Order joining its vice-chancellor, registrar and deputy
registrar on the grounds that it was
evident that they had acted in
contempt of the anti-eviction order and willfully chose not to
examine their e mails so that they
might disavow any knowledge of the
Order which had been granted in its absence over the weekend. (See
the unreported judgment of
Dladla v Tshwane University of
Technology and Others
(8105/2014) [2015} ZAGPPHC 666)
41.
These were matters that were highly relevant facts that should have
been disclosed . In this respect it is stressed that even
it
transpires that the applicant is ultimately successful in this
application, such non-disclosure may nevertherless warrant a
punitive
order of costs being made against it.
(Wilkies Continental Circus
v De Raedts Circus
1958 (2) SA 598
(SWA) at 604A-605B).
42.
The respondents also aver that there was absolutely no basis for the
applicant to have proceeded
ex parte.
This was because not
only was the applicant fully aware that the respondents were
represented and who represented them (which should
also have been
disclosed), but also because neither the urgency of the situation,
nor the circumstances, justified such an order;
there were absolutely
no grounds for the averment that had notice been given it would have
defeated the purpose of the order
(Turquoise River Incorporated v
McMenamin
1992 (3) SA 653
(D) at 6570).
43.
Whilst I accept that the situation was indeed urgent and the violence
and destruction to property required that urgent measures
be taken to
curb the violence, I do not see how giving notice to the respondents'
legal representatives and allowing them to be
heard could have
negated the relief sought.
44.
Having regard to the strict requirements to secure an eviction under
Prevention of Illegal Eviction from and Unlawful Occupation
of Land
Act 19 of 1988 (PIE), where an order for eviction is sought, this
should only be sought without notice in cases of extreme
urgency
where there is no time to provide notice or, for some reason, if
notice is given the aim of the Order will be thwarted.
In such
circumstances, a
rule nisi
should only be sought in the
interim on the basis that notice will be given and the parties
afforded a proper and expeditious opportunity
to be heard
(Universal
City Studios Inc v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986 (2) SA 734
(A) at
753C). As a matter of principle, a person should not be evicted
without notice and without being afforded an opportunity
to be heard.
45.
In this respect the comments of Van der Westhuizen J in the
Constitutional Court in
Zulu v eThekwini Municipality and Others
(supra)
from paragraph [45] are again apposite:
[45] At the very
least, an eviction order could not lawfully have been issued without
judicial determination that it wasjust and
equitable to do so,
considering all relevant circumstances and having allowed affected
persons, especially the most vulnerable,
to present evidence of their
circumstances in
a
hearing. The order was issued without
consideration of those persons whom it would impact, in obvious
contravention of
PIE and in direct violation of underlying
constitutional rights. I would find that the interim order is
unlawful and therefore unconstitutional
on the basis that it negates
the Madia/a Village residents' rights (as well as those of unnamed
others) under PIE and section 26(3)
of the Constitution.
[46] Not for
a
moment do I doubt the seriousness of illegal land invasions. But
serious too is the illegal eviction of vulnerable individuals with
nowhere else to live. This was the motivation for the enactment of
PIE and its protective measures which are intended to ensure
due
process and sufficient consideration of housing needs prior to
eviction. As state organs, the respondents have failed in their
constitutional obligations by repeatedly evicting (or, as the case
may be, sanctioning the eviction of) the Madlala Village residents
without an appropriate court order.
[47] It is not only
desirable, but necessary, to reach the interim order because of the
uncertainty concerning (a) future litigation
in this case; (b)
whether Jeffrey AJ's order will prevent further unlawful evictions
arising from the interim order for all those
potentially affected;
and (c) the legality of orders of this type. It is true, as the main
judgment points out, that, having been
granted leave to intervene,
the Madlala Village residents will be able to argue that the rule
nisi should be discharged. This,
however, does not necessarily mean
that they will succeed, in which case they will again have to
make
a
circuit through the courts. Even if they are
successful,
they may suffer
-
and have already suffered
-
undue prejudice from the delay . ...
[50] Furthermore, it
is necessary that this Court establish legal certainty on orders like
the interim order. This order was not
an isolated or unique incident
-
it seems that other courts have issued similar orders, at
least one of which has been found to be constitutionally problematic.
Many people may well be affected by this Court's determination that
it is unacceptable for court orders to sidestep the protections
in
PIE."
46.
Having regard to this and the other comments of
Van der Westhuizen
which followed in paragraph [51] quoted above, I am fortified in
my view that unless the exigency or urgency of the situation
necessarily
require that an eviction order be granted
ex parte,
such an order should only operate on an interim basis of short
duration and, as a general rule, eviction orders should not be
granted
without notice.
47.
The respondent's however, wish me to elevate this to a constitutional
rule that, for the purposes of this application, it is
not necessary
for me to decide, nor should I decide unless it is an issue in the
public interest. I don't believe that this case
warrants my making
such a finding.
48.
For what it is worth, I believe that to elevate this general rule to
a constitutional percept would be going too far and would
not account
for the myriad of situations where a Court may well find that to do
so was appropriate in the circumstances. Section
26(3) of the
Constitution does not provide that an eviction may not be sought
without notice, only that persons may not be evicted
without an order
of court. Had the drafters of the Constitution wished to add a
further
caveat
that such court order could not be obtained
without notice to those sought to be evicted, it would have framed
the section to provide
that
"no one may be evicted from their
home . . ..without
a
court order made [on notice] after
considering all the relevant circumstances."
The fact that
the court making such order is enjoined by the section to consider
all the relevant circumstances, serves to confirm
my view that the
court approached would always have a discretion to decide, not only
whether such Order should be granted, but
also whether it could
appropriately be granted without notice in the circumstances.
49.
In the circumstances I do not accept that it would be
unconstitutional for a court to ever grant such an order
ex parte.
50.
However, because I believe that an
ex parte
eviction order was
improperly sought in the current circumstances, had the matter been a
live issue, this alone would have entitled
the respondents to have
the
rule nisi
discharged and the application dismissed with
attorney and client costs.
51.
It is, therefor, not necessary for me to decide whether the
requirements for interim relief- the balance of convenience and
no
adequate alternative remedy- were met.
The
lawfulness of the decision taken to close the residences.
52.
This issue is moot because the students have been permitted to return
to their residences, the 2014 academic year has long gone,
as has the
2015 academic year. We are now well into the 2016 academic year and
thus the respondents counter- application to seek
a further
anti-eviction order is entirely academic.
53.
The respondents, however, essentially want their day in court and
persist in seeking a declaratory that the eviction on 20 September
2014 by the applicant of the residence students at all of the
applicant's campuses not covered by the 12 September 2014 Order was
unconstitutional and illegal because an order of court was not sought
or granted in respect thereto. As I have said, although I
agree with
Fabricius J that the courts time should be taken up in making
declaratory orders sought only on the basis of principle,
I am
nevertheless enjoined to consider this issue for the purposes of
costs and in view of the wider public interest of this issue.
54.
In this respect I again refer to a judgment of Van der Westhuizen J
in
Pheko and Others v Ekurheleni Metropolitan Municipality
2012(2)
SA 598 (CC) where he that although the question of mootness is
important to the interests of justice, it is but one of the
factors
that must be taken into consideration in the overall balancing
process. He held on the facts before him involving the eviction
of
squatters that:
"[31] Indeed, if
the applicants' rights were not infringed and are no longer
threatened, or the applicants have no interest
in
the
adjudication of the dispute, it will not be in the interests of
justice to grant leave to appeal directly to this Court.
[32] It is beyond
question that the interdictory relief sought will be of no
consequence as the applicants have already been removed
from
Bapsfontein. Although the removal has taken place, this case still
presents
a
live controversy regarding the lawfulness of the
eviction. Generally, unlawful conduct is inimical to the rule of law
and to the
development of a society based on dignity, equality and
freedom. Needless to say, the applicants have an interest in the
adjudication
of the
constitutional issue at stake. The matter
cannot therefore be said to be moot.
"
55.
In deciding the issue before me, the cardinal question is whether the
decision to summarily close the residences constituted
an
"eviction"
in breach of section 26(3) of the Constitution which provides:
"
No one may be
evicted from their home .... without an order of court made after
considering all the relevant circumstances."
56.
This requires an enquiry as to whether:
56.1. a student residence
constitutes a
"home"
as contemplated in the section;
and
56.2. the decision
constituted an
"eviction"
or an
"evacuation"
as contended by the applicant .
57.
If these requirements are met, it is common cause that in so far as
the campuses not covered by the 12 September 2014 Order
are
concerned, no court order was obtained authorizing the applicant's
conduct The applicant, however, disavows any reliance by
it on the 12
September 2014 court order in
"evacuating"
the
students, even from the Pretoria West and Garankuwa campuses, and
state that this was done pursuant to the entirely separate
and
distinct administrative decision taken by its Council to close the
residences for the October vacation some 10 days earlier
than
anticipated. It avers that this decision was necessary in view of its
obligation as
locus parenthesis
to protect its student body as
well as its staff and its property.
58.
As an ancilliary to this argument, the applicant avers, relying on
the principle enunciated in the
Oudekraal Estates (Pty) Ltd v The
City of Cape Town and Others
(25/08)
[2009]
ZASCA
85
;
2010
(1) SA 333
(SCA) (3 September 2009), that the respondent's
counterclaim is ill conceived and should the respondent's view
this as being
unlawful, its remedy was to seek to review the decision
and set it aside.
59.
I find the applicant's arguments in this respect to unsustainable;
they amount to an
ex post facto
justification for a decision
taken to close the residences in an emergency situation (for which I
have a lot of sympathy) without
a court order by characterizing what
was done as an administrative decision to
"evacuate"
the
students from the residences.
60.
Neither of these arguments assist the applicant: If the
effect
of
the decision constituted an unlawful eviction, it is utterly
irrelevant whether the applicant's actions were preceded by an
administrative action or not. And, whether what was done constituted
an
"evacuation"
and not an
"eviction",
I do not believe that the applicant was justified in so acting
without a court order.
Is
a student residence a
"home"?
61.
Much was made of the fact that in terms of the Rules and Regulations
pertaining to the provision of accommodation to students
in
residences, they are required to vacate these residences and return
home during the vacations. This is because the universities
often run
courses during the holidays for students who require accommodation.
62.
This, however, does not apply to the September/October vacation and
cannot afford any excuse for closing the residences on the
pretext
that by so doing, the applicant was simply anticipating the
September/October vacation.
63.
It also does not mean that these residences do not constitute a
"home"
for the students for some 10 months of the
year within the meaning of section 26(3) of the Constitution.
64.
In the leading case of
Barnett and Others v Minister of Land
Affairs and Others
2007 (6) SA 313
(SCA) at [38] onwards, it was
stated:
"[38] This leads
to the next question: can the cottages on the sites that were put up
by the defendants for holiday purposes
be said to be their homes, in
the context of PIE? I think not. Though the concept 'home' is not
easy to define and although I agree
with the defendants' argument
that one can conceivably have more than one home, the term does, in
my view, require an element of
regular occupation coupled with some
degree of permanence. This is in accordance, I think, with the
dictionary meanings of' 'the
dwelling in which one habitually lives;
the fixed residence of a family or household; and the seat of
domestic life and interests'
(see eg The Oxford English Dictionary
2ed Vol VII). It is also borne out, in my view, by the following
statement in Beck v Scholz
[1953] 1 QB 570
(CA) 575-6:
' The word 'home'
itself is not easy of exact definition, but the question posed, and
to be answered by ordinary common sense standards,
is whether the
particular premises are in the personal occupation of the tenant as
the tenant's home, or, if the tenant has more
than one home, as one
of his homes. Occupation merely as a convenience for
. . .
occasional visits
. . .
would not, I think, according to
the common sense of the matter, be occupation as a "home".'
[39] Moreover, within
the context of s 26(3) of the Constitution
-
and thus within
the context of PIE
-
I believe that my understanding of what
is meant by a 'home' is supported by Sachs J , speaking for the
Constitutional Court, in
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC) para 17, where he said:
'Section
26(3) evinces special constitutional regard for a person's place of
abode. It acknowledges that a home is more than just
a shelter from
the elements. It is a zone of personal intimacy and family security.
Often it will be the only relatively secure
space of privacy and
tranquillity in what (for poor people, in particular) is a turbulent
and hostile world. Forced removal is
a shock for any family, the more
so for one that has established itself on a site that has become its
familiar habitat.'
[40] These sentiments
cannot, in my view, apply to holiday cottages erected for holiday
purposes and visited occasionally over weekends
and during vacations,
albeit on
a
regular basis, by persons who have their habitual
dwellings elsewhere. Thus I conclude that for purposes of PIE, the
cottages concerned cannot be said to be the defendants' 'homes'."
65.
There can be little doubt that a student residence is not like
holiday cottages and satisfy the requirement of a
"home"
as so defined. It is the place where they stay for the majority
of the year; although they may not regard it from the point of view
of their domicile as their permanent home, it is their home for the
majority of the year.
66.
It is utterly irrelevant whether the students have a right to student
accommodation implying that they can be deprived of it
simply by
administrative action: the only issue is whether, having been
afforded accommodation, they were unlawfully evicted therefrom
without due process of law; PIE makes it clear that even illegal
squatters cannot be evicted without due process. Although it is
not
contended that the student's occupation of the residences was
unlawful, it is of some relevance to the argument that students
do
not have a right to accommodation, that in determining whether there
has been a spoliation, the lawfulness or otherwise of the
person's
occupation is irrelevant. This principle is simply that one may not
take the law into one's own hands. This applies equally
to the
eviction of students involved in violent and unlawful student
protests from the residences.
Was
the effect of the implementation of the decision an
"
eviction"
or an
"evacuation"?
67.
The applicant avers that in requiring the students immediately vacate
their residences on less than 24 hours with the assistance
of
security guards (or bouncers as averred by the respondents) they were
acting upon a decision to
"evacuate"
the students to
protect them as their custodian in a time of emergency and imminent
danger.
68.
I do not dispute that the situation faced by the Council was a dire
one. Buildings were being vandalized and burnt, cars were
being set
alight, students and staff were being intimidated and the campuses
had been rendered ungovernable. The Council was required
to take
decisions and to act immediately to protect its property and its
students and staff. It was felt that if the residences
could be
closed, where it was felt many of the rabble rousers were
accommodated, were taken off campus, this may serve to quell
the
violence. In the situation faced by the applicant, I have no doubt
that this was a
bona fide
and rational decision, but the
question is was it lawful. If it amounted to an eviction without an
order of court' it was not.
69.
The applicant has sought to get around this difficulty by
characterising its decision as one to
"evacuate"
the
students. But in
Pheko and Others v Ekurheleni Metropolitan
Municipality
2012(2) SA 598 (CC), the Constitutional Court set
out the Municipalities contentions, which were somewhat similar to
those advanced
in this case at paragraph [20] ff as follows:
"[21] 0n the
merits, the Municipality remains steadfast that it acted lawfully in
"evacuating" the applicants from
Bapsfontein under section
55
of the OMA. It contends that evacuation as
a
result
of
a
"disaster" or "situation of emergency"
is not an eviction within the contemplation of section 26(3) but
a
legitimate response to
a
crisis to save life or property.
The "imminent" disaster, it is argued, occurring
"surprisingly" or "unexpectedly",
could not
practically be dealt with by way of
a
court order.
[21] The Municipality
relies on City of Johannesburg v Rand Properties (Pty) Ltd and Others
(Rand Properties) to justify the eviction
of the occupiers without
having complied with the relevant factors contemplated in section
26(3) of the Constitution. It sought
to demonstrate that the removal
is an administrative act requiring no order of court. The
Municipality argues that section 26(3)
has two parts: the first
dealing with evictions that are subject to control by means of
a
court order and the second part dealing with legislation which
permits an eviction but requires an eviction not to be arbitrary.
It
is argued that in interpreting section 26(3), one part cannot be
subordinated to the other and that the section therefore permits
legislation to authorise an eviction without
a
court order.
[22] It is contended
that the relocation was
a
temporary arrangement until further
relocation "to either state subsidised houses
. . .
or to
some other land". The demolition, it is contended, enabled
the Municipality to carry out the directive and prevent
the
applicants from returning to Bapsfontein. Additionally, the
Municipality argues that PIE does not apply because none of the
applicants contend that their occupation of Bapsfontein was unlawful.
[20] On the merits,
the Municipality remains steadfast that it acted lawfully in
"evacuating" the applicants from Bapsfontein
under section
55 of the OMA. It contends that evacuation as
a
result of
a
"disaster'' or "situation of emergency" is not an
eviction within the contemplation of section 26(3) but a legitimate
response to a crisis to save life or property. The "imminent"
disaster, it is argued, occurring "surprisingly"
or
"unexpectedly", could not practically be dealt with by way
of a court order.
[21] The Municipality
relies on City of Johannesburg v Rand Properties (Pty) Ltd and Others
(Rand Properties) to justify the eviction
of the occupiers without
having complied with the relevant factors contemplated in section
26(3) of the Constitution. It sought
to demonstrate that the removal
is an administrative act requiring no order of court. The
Municipality argues that section 26(3)
has two parts: the first
dealing with evictions that are subject to control by means of
a
court order and the second part dealing with legislation which
permits an eviction but requires an eviction not to be arbitrary.
It
is argued that in interpreting section 26(3), one part cannot be
subordinated to the other and that the section therefore permits
legislation to authorise an eviction without a court order.
[22] It is contended
that the relocation was a temporary arrangement until further
relocation "to either state subsidised houses
. . .
or to
some other land". The demolition, it is contended, enabled the
Municipality to carry out the directive and prevent the
applicants
from returning to Bapsfontein. Additionally, the Municipality argues
that PIE does not apply because none of the applicants
contend that
their occupation of Bapsfontein was unlawful"
70.
Dealing with the facts before it the Court defined the issue relevant
to this matter -
"[24] The key
issue concerns whether the removal that occurred in this case was an
evacuation under section 55 of the OMA as
contended for by the
Municipality. Related to this are questions of the proper
interpretation of the OMA and appropriate relief
"
71.
Dealing with this issue, Van Der Westhuizen held:
[36]
Section 55(2)(d) of the OMA provides that evacuation is limited to
cases where temporary action is necessary for the preservation
of
life. It provides:
"If
a
local
state of disaster has been declared in terms of subsection (1), the
municipal council concerned may, subject to subsection
(3), make
by-laws or issue directions, or authorise the issue of directions,
concerning-
(d) the evacuation to
temporary shelters of all or part of the population from the
disaster-stricken or threatened area if such
action is necessary for
the preservation of life". (Emphasis added.)
[37] This section must
be interpreted narrowly. A wide construction may adversely affect
rights in section 26. The language used
in section 55(2)(d) is
critical. The text must be interpreted in the context of the OMA as
a
whole, taking into consideration whether its preamble and other
relevant provisions support the envisaged construction.
[38] Properly
construed and read in conjunction with other provisions, including
sections 55(1) and 2(1) of the OMA, section 55(2)(d)
does not
authorise eviction or demolition without an order of court. On its
wording, the OMA deals with "evacuation".
The word
"evacuate" is generally used to describe what is done in
a
situation
where people's lives are at risk as
a
result
of impending "disaster".
"Evacuate" means
to "remove from
a
place of danger to
a
safer
place." The people concerned therefore require immediate removal
to
a
safe temporary shelter, away from the disaster area, in
order to preserve their lives.
[39] Section 55(2)(d)
authorises the evacuation to temporary shelters for the preservation
of life. This means that the OMA ordinarily
applies only to temporary
removal from
a
disaster stricken area to
a
temporary
shelter. It implies that those evacuated may return to their homes,
if possible. This is not the case here. Evacuation
is not the
equivalent of eviction, much less of
a
demolition. On the
Municipality's own admission, no purpose would have been served by
removing the applicants without demolishing
their homes
because they would otherwise have returned to Bapsfontein. Evidently,
this is not what section 55(2)(d) sanctions.
[40] An evacuation
does not entail the demolition of peoples' homes or an indefinite
removal. The OMA does not seek to achieve this.
If the purpose of the
OMA were to authorise demolition and eviction without an order of
court, it would have said so. It does not.
The forcible removal of
the applicants amounts to an eviction, an indefinite removal from
Bapsfontein. The deprivation is, in the
circumstances, inimical to
the right in section 26(3).
[41] It is true that
the VG/ report recommended that the residents of Bapsfontein be
evacuated and relocated. The Municipality suggested
that an
unexpected or surprising disaster was imminent or simmering thus
suggesting exigency. However, the facts do not suggest
that there was
any need for urgent evacuation at all. Conversely, the history of
this matter shows that the Municipality never
regarded the relocation
of the applicants to be urgent to warrant drastic measures of
unauthorised removal and demolition of shelters.
This is fortified by
the fact that Bapsfontein was identified as a hazardous area as early
as 1986; its first sinkhole was identified
in 2004; the first
commissioned report was delivered in June 2005 and the second report
in September 2005; no action was taken
in response to these reports
for four years after they were delivered, until 2009, when another
report was commissioned and delivered;
and only in 2010 did the
Municipality finally start taking action to relocate the residents
from Bapsfontein.
[42] The
Municipality's powers following upon the declaration of a local state
of disaster must be exercised only to the extent
that it is strictly
necessary for the purposes set out in section 55(3). This means that
the powers concerned may not be used for
purposes other than
evacuation.
72.
Returning to the facts of the present matter, whilst it may have been
the intention that the students would be housed in the
safe
environment of their homes and it is stated that where students were
unable to get home, arrangements were made to assist
them, it must be
accepted that many student found themselves stranded without notice
with nowhere to stay and no financial means
of returning home. It
would only have been the privileged few who could have, without
difficulty, simply returned to the safe environment
of their homes.
73.
It matters not that this was proposed as a temporary solution and it
matters not that the eviction was not intended to be permanent
although it must be borne in mind that it was stated that the
"evacuation"
was to be
"until further
notice" ;
the sole issue is whether the implementation of
the decision constituted and
"eviction"
or an
"evacuation".
74.
In this respect, I do not accept that by not providing the students
temporary alternative shelter this necessarily was not an
"evacuation" as I believe that the Council was entitled to
assume that the students would all be able to be housed in
the safety
of their homes, as they would during the holidays.
75.
But, the applicant did not account for the fact that many of the
students were not obliged to vacate the residences during the
September/October vacation. Many were not intending nor had made
plans to, nor could they afford to return home for the
September/October
vacation. It did not account for the fact that the
students were not given sufficient notice of the need to evacuate
them so that
they could make alternative arrangements. And, even in
the event of an emergency, the students did not have to manhandled
out of
the residences without the opportunity to collect their
belongings. All in all, I believe that the
"evacuation",
if that is what it was, was badly handled without due regard, in
particular, those students who had not been involved in the protests
or the violence. Even those who had been involved in the violence,
could not simply be summarily told to evacuate the residences
on but
a few hours notice. The fact that they did not have
"clean
hands"
did not entitle the applicant to take the law into
its own hands.
76.
In
Greyling v Estate Pretorius
supra 517, Price J stated that,
if the courts do not enforce the mandament-
" we should soon
found that the slender paradise our toil has gained for us of an
ordered community had been lost and the dreadful
'reign of chaos and
old night' would be upon us. The modern Montagues and Capulets
.
. .
would soon make our streets and thoroughfares hideous with
their disputes, their fighting and their brawls
-
turbulence
and civil commotion would soon replace the law of order and decency".
77.
That being said, and with due sympathy for the predicament the
applicant found itself in, it was fully aware that it could not
simply
"evacuate"
the students and that is why it
urgently sought a Court Order before it did so on 12 September 2014.
There is absolutely no explanation
why it took the view, some 8 days
later, that this was not required and it could simply do so by
administrative decision without
recourse to the courts on the pretext
that it was hereby evacuating and not evicting the students and
merely advancing the impending
vacation. I have already stated that
this provided no excuse as the students were not anticipating that
they be required to vacate
their residences for this vacation, but
more importantly, there is nothing to suggest what circumstances
changed in those 8 days
to turn the decision to require the students
to vacate the residences from an
"eviction"
into an
"evacuation"
in the case of an emergency.
78.
There can be little doubt that the urgent situation that prevailed
that prompted the applicant to approach the court on 12 September
2014 without notice was not dissimilar to that faced by the applicant
on 20 September 2014 when the violence again erupted. Yet
it
approached the court urgently before acting. I can see no reason why
it did not again approach the Court, particularly in view
of its
insistence that it was not, in so acting, purporting to act in terms
of the Court Order of 12 September 2014 ( which in
any event, applied
only to two of its 6 campuses which it sought to
"evacuate'
).
An urgent judge is available 24 hours a day and can be hauled
out of his/her bed in the middle of night; there can seldom be so
urgent a situation where it is not possible to seek and obtain a
Court Order when required.
79.
In this respect, I refer to Jansen J's unreported judgment in the
joinder application to the contempt proceedings between Dladla
and
the applicant referred to above and in particular her remarks in
paragraph [3] that the notice distributed by the applicant
on 30
January 2014 to all students at its campuses to vacate their
residences by 7.30 am on 31 January 2014 until further notice,
amounted to a summary eviction of the students-
"without prior
notice, thus breaching their basic constitutional rights to
accommodation. It is important to emphasise that
the mass-eviction
took place, as stated, without a court order, allowing the TUT to act
accordingly. It had ample opportunity to
request such an order from
the court but failed to do
so."
80.
The learned judge also rejected the applicant's argument that the
decision to require the students to vacate their residences
was an
administrative order. She stated at paragraph [52] that :
[52 . .
..
Our
courts do not approach evictions as administrative actions which
should be taken on review due to the drastic and unlawful nature
of
most eviction orders and the breach of the principle of legality
"
81.
I thus, have little hesitation in finding that the applicant acted
improperly in requiring the
"evacuation"
of the
students without a court order.
Did
the applicant act in contempt of the Court Order of 12 September 2014
in "evacuating" the students from the Pretoria
West and
Garankuwa campuses in not affording the students an opportunity
to return to their residences should they
sign a disclaimer
renouncing violence?
82.
I agree that the issue of contempt of an court order can never be
purely academic; it is cardinal to the effective administration
of
justice that court orders are respected and obeyed and that litigants
cannot escape the consequences of their contempt of an
order on the
basis that the issues behind the order have now become academic.
83.
In
Fakie NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA),
Cameron JA ( as he then was) stated the principle thus:
[6] It is a crime
unlawfully and intentionally to disobey a court order. This type of
contempt of court is part of a broader offence,
which can take many
forms, but the essence of which lies in violating the dignity, repute
or authority of the court. The offence
has in general terms received
a constitutional 'stamp of approval', since the rule of law - a
founding value of the Constitution
- 'requires that the dignity and
authority of the courts, as well as their capacity to carry out their
functions, should always
be maintained'.
84.
The question then arises whether in effecting the
"evacuation"
of the students, the applicant was in fact acting, at least in so
far as the Pretoria West and Garankuwa campuses are concerned,
in
contempt of the 12 September 2014 Order which required that it could
only evict those students who failed to sign a declaration
that they
renounced violence.
85.
It is common cause that no such recourse was afforded to the students
when they were
"evacuated'
and this was only tendered by
the Council 5 days later when Dladla approached this court urgently
to intervene and anticipate the
return day of the
rule nisi
that
had been granted. Although this remedied the contempt, if any, the
respondents argue that
"contempt is contempf' ,
no matter
for how short a period it continued for, and this court should
sanction the applicant accordingly.
86.
Although the Order of 12 September 2014 pertained only to the
Pretoria West and Garankuwa campuses, I have little doubt that
the
applicant was well aware that should it wish to
"evacuate"
its students from its other residences, these same requirements
would probably also apply.
87.
In this respect, the applicant was in a somewhat catch- 22 situation
where it had a Court order to evict students on 2 of its
campuses in
respect of which it was obliged to afford the students the right to
return on signing an undertaking, which it did
not do rendering it in
contempt of the order, but no order in respect of its other campuses,
rendering its eviction or
"evacuation"
of the
students, unlawful .
88.
I am mindful that the applicant insists that in
'evacuating'
the
students, it did not purport to act in terms of the 12 September 2014
Court Order. But that fact of the matter is that with
regard at least
to the aforementioned campuses, it had sought the sanction of the
courts to evict the students which had only been
permitted on the
basis that students be afforded the opportunity to return to their
residences if they signed the required disclaimer,
and this
opportunity was not afforded to these students.
89.
It was not for the applicant to choose if, and whether to enforce the
Court Order. If circumstances had changed in that it now
sought to
evacuate all of the students to protect their safety and not simply
evict those who refused to renounce violence to quell
the violence by
getting the rabble rousers off campus, it should have approached the
court to remove this condition on the basis
that it was no longer
appropriate and it needed, in the interests of safety, to get all of
the students off campus. It matters
not that the circumstances
motivating the court order had changed. It was not for the applicant
to choose whether the order was
applicable or not.
90.
But this in itself does not mean that the applicant acted in contempt
of court. For this, it was incumbent on the respondents
to provide
evidence of willfulness and ma/a
tides.
I do not believe that
there is any evidence of this. I believe that the applicant genuinely
believed that the circumstances had
changed justifying their
evacuating all of the students from all of its campuses and although
I do not believe that they were entitled
to do this without a court
order, it has not been established that the applicant believed that
it was acting in terms of the 12
September 2014 Order- although I
believe they should have realized that, having obtained such order,
at least with regard to these
campuses, they could not act except in
terms of that Order.
91.
It is, moreover, of no assistance to the applicant's that their
contempt was short lived and was, after a period of only 5 days,
subsequently cured ( See Jansen's judgment
(supra)
at
paragraph [64] .)
92.
Lan v OR Tambo International Airport Department of Home Affairs
Immigration Admissions, and Another
2011 (3) SA 641
(GNP) it was
held that:
"[71] However the
question arises if a court can simply ignore the fact that a person
for a specific period of time acted in
contempt of a court order, and
then thereafter, through much force and persuasion, changed his mind
to then comply with the court
order. Should such a person be regarded
as not having committed the offence, should a court order be sought
against him in that
regard? I do not think so. Once the requirements
of the offence have been established to have existed at a certain
period in time,
and once it is found that no valid offence has been
raised in that regard, a positive finding should follow.
[72] It must be kept
in mind that contempt of court proceedings are not only directed
towards the perpetrator, but are directed
towards the protection of
the courts, respect towards the courts and court orders, and the
protection of the integrity of the court
system. Non-compliance at a
specific period in time cannot therefore simply be ignored because
compliance did in fact occur at
a later stage."
93.
I am mindful that the fact that the applicant's counsel tendered to
allow students to return should they renounce violence as
required by
the 12 September 2014 Order (when Dladla approached the court to
discharge the
rule nisi
and declare the applicants in contempt
of court), may indicate that the applicant appreciated that, at least
in so far as these
campuses were concerned, it could not evict the
students without affording this alternative to them and thus may have
willfully
been in contempt of court. However, a finding of
willfulness and mala tides on the applicant's part is a very serious
finding that
I cannot make on the evidence before me. It may well be
that the applicant only appreciated this after the advice of its
counsel
when faced with this difficulty when contempt proceedings
were brought and it did not, at the time of making the decision and
"evacuating"
the students, willfully act in contempt
of court. In this respect, I believe that the current circumstances
are somewhat different
from those before Jansen J in considering
Dladla's application to join the applicant's office bearers who she
found had deliberately
taken steps to avoid knowledge of the
anti-eviction Order.
94.
Although this issue was to have been decided at the extended return
date during August 2016, this judgment has been reserved
and I have
not had the advantage of having had sight of this judgment when
preparing my judgment. However, I do not believe that
that judgment
would affect my view that mala tides and willfulness not to comply
with the 12 September 2014 has not been established
in this matter.
Costs
95.
Nevertheless, as I have said, it is my view that the applicant ought
to have obtained a court order prior to requiring the students
to
vacate their residences and it acted unlawfully in not doing so; for
this it should be mulcted with costs. Because it flouted
the rules of
bona tides
in approaching the court to evict the students at
its Pretoria West and Garankuwa, I believe that these costs should be
punitive
costs.
Application
for leave to intervene
96.
Dladla seeks leave to intervene in these proceedings in his personal
capacity on behalf of all of the students in residences
at all of the
applicant's campuses as a class action in the public interest as
contemplated in section 38(c) of the Constitution.
I do not see why
he should do so. The first, second and third respondents have passed
a resolution that he represent them and other
than in his capacity as
their representative as President of the Central Student
Representative council, the CSRC, no public interest
issues require
that he be joined in his personal capacity to these proceedings; a
fortiori
as the proceedings are essentially moot and will have
no practical effect.
97.
This matter does not warrant a class action of the type envisaged by
Cameron JA in
The Permanent Secretary, Department of Welfare,
Eastern Cape Provincial Government and another v Ngxuza and Others
(493/2000)
[2001] ZASCA 85
(31 August 2001) where pensioners
sought to secure the reinstatement
en masse
of their cancelled
state pensions through a class action in terms of section 38(c) of
the Constitution He explained the purpose
of a class action-
"In the type of
class action at issue in this case, one or more claimants litigate
against
a
defendant not only on their own behalf but on behalf
of all other similar claimants. The most important feature of the
class action
is that other members of the class, although not
formally and individually joined, benefit from, and are bound by, the
outcome
of the litigation unless they invoke prescribed procedures to
opt out of it. The class action was until 1994 unknown to our Jaw,
where the individual litigant's personal and direct interest in
litigation defined the boundaries of the court's powers in it.
If
a
claimant wished to participate in existing court proceedings, he
or she had to become formally associated with them by compliance
with
the formalities of joinder. The difficulties the traditional approach
to participation in legal process creates are well described
in
an analysis that appeared after the class action was nationally
regularised in the United States through
a
federal rule of
court more than sixty years ago:
''The cardinal
difficulty with joinder
...
is that it presupposes the
prospective plaintiffs' advancing en masse on the courts. In most
situations such spontaneity cannot
arise either because the various
parties who have the common interest are isolated, scattered and
utter strangers to each other.
Thus while the necessity for group
action through joinder clearly exists, the conditions for it do not.
It may not be enough for
society simply to set up courts and wait for
litigants to bring their complaints
-
they may never come.
What is needed, then,
is something over and above the possibility of joinder. There must be
some affirmative technique for bringing
everyone into the case and
for making recovery available to all. It is not so much
a
matter
of permitting joinder as of ensuring it."
The class action cuts
through these complexities. The issue between the members of the
class and the defendant is tried
once. The judgment binds all,
and the benefits of its ruling accrue to all. The procedure has
particular utility where
a
large group of plaintiffs each has
a
small claim that may be difficult or impossible to pursue
individually ...
It is precisely
because so many in our country are in
a
"poor position to
seek legal redress", and because the technicalities of legal
procedure, including joinder, may unduly
complicate the attainment of
justice, that both the interim Constitution and the
Constitution-created the express entitlement that
"anyone"
asserting
a
right in the Bill of Rights could litigate "as
a
member of, or in the interest
of, a
group or class of
persons".
98.
Cameron JA went on to state:
"It is the needs
of such persons, who are most lacking in protective and assertive
armour, that the Constitutional Court has
repeatedly emphasised must
animate our understanding of the Constitution's provisions. And it is
against the background of their
constitutional entitlements that we
must interpret the class action provision in the Bill of Rights.
Though expressly creating
that action the Constitution does not state
how it is to be developed and implemented. This it leaves to courts,
which s 39(2)
enjoins to promote the spirit, purport and object of
the Bill of Rights when developing the common law, and upon which s
173 confers
inherent power "to develop the common law, taking
into account the interests of justice."
99.
Dealing with the he circumstances of this particular case, Cameron JA
rejected the lower courts refusal to allow a class action
stating
that -
"unlawful conduct
by
a
party against
a
disparate body of claimants
lacking access to individualised legal services, with small claims
unsuitable for if not incapable of
enforcement in isolation
-
should have led to the conclusion, in short order,
that the
applicants' assertion of authority to institute class action
proceedings was unassailable".
100.
He went on to stress that -
"First, this is
no ordinary litigation. It is
a
class action. It is an
innovation expressly mandated by the Constitution. We are enjoined by
the Constitution to interpret the Bill
of Rights, including its
standing provisions, so as to ''promote the values that underlie an
open and democratic society based
on human dignity, equality and
freedom". As pointed out earlier we are also enjoined to develop
the common law
-
which includes the common law of jurisdiction
-
so as to "promote the spirit, purport and objects of
the Bill of Rights". This Court has in the past not been averse
to
developing the doctrines and principles of jurisdiction so as to
ensure rational and equitable rules. In Roberts Construction
Co
Ltd v Willcox Bros
(Pty) Ltd-this Court held, applying the
common law doctrine of cohesion of
a
cause of action
(continentia causae), that where one court has jurisdiction over
a
part of
a
cause, considerations of convenience, justice and
good sense justify its exercising jurisdiction over the whole cause .
. .
In any event, even if
a
strict approach would weigh against permitting inclusion of
extra-jurisdictional applicants in a plaintiff class, it is plain
that
the Constitution requires adjustment of the relevant rules,
along sensible and practical lines, to ensure the efficacy of the
class
action mechanism. As O'Regan J pointed out in Ferreira v Levin
NO, the constitutional provisions on standing are
a
recognition
of the
particular responsibility the courts carry in
a
constitutional
democracy to ensure that constitutional
rights are honoured:
"This
role requires that access to the courts in constitutional matters
should not be precluded by rules of standing developed
in
a
different constitutional
environment in which
a
different model of adjudication
predominated. In
particular, it is important that it is not only those with vested
interests who should be afforded standing in
constitutional
challenges, where remedies may have
a
wide impact."
101.
The entire class of students who reside on the Pretoria West and
Garankuwa campuses have been cited as the fourth respondent.
As I see
it, the only basis for Dladla to intervene would be to widen this
class to all students who reside at the applicant's
other four
campuses.
102.
However, although the students at the other four campuses have not
been identified as respondents and it is readily apparent
that the
matter before the court directly affects them as a notice to vacate
the residences was sent to the students at all of
the applicant's
campuses and not only those cited as the fourth respondents, I do not
see that justice or convenience requires
that the students at all of
the applicant's campuses be represented by Dlaldla in a class action.
They are sufficiently represented
by him in his capacity as President
of the the CSRC which represents all of the students at all of the
applicant's campuses which
has been cited as the first respondent and
there is, therefore, no need for him to independently represent these
students. The
SRC's of each of these individual campuses have been
cited as the second and third respondents.
103.
I therefore, do not think that there is any real purpose in joining
the students who stay in residences at the other four campuses
in a
class action represented by Mr Dladla, or that justice will not be
served if they are not joined. I also do not accept that
it is in the
public interest that they be so joined as contemplated in section
38(c) of the Constitution.
104.
Although I accept the relevance of this judgment to all students
residing in residences at all universities and not only TUT
campuses,
this is not the basis upon which Dladla seeks a class action as he
seeks only to represent the class of students residing
at the
applicant's campuses. The fact that I have accepted that the issues
that are essentially moot so far as the parties are
concerned should
be dealt with in the public interest, this does not require that all
students residing at residences at all universities
be joined in a
class action in the event that similar orders to vacate the
residences be issued to them. My judgment will neither
bind nor
entitle such students to any relief.
105.
I thus do not believe that despite the fact that Dladla may have
satisfied the broad requirements for a class action laid down
by the
Supreme Court of Appeal in the matter of
Children's Resource
Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013
(2) SA 213
(SCA) , it would be either sensible or practical, or in
the interests of justice or the public at large, for Dladla to be
joined
in his personal capacity in these proceedings. As was stated
in that case, -
"a
class
action is available in terms of section 38 of the Constitution if it
is alleged that
a
right in the Bill of Rights has been
infringed or threatened. It only applies directly to infringements or
threats to rights in
the Bill of Rights.
106.
A class action, therefore, does not apply where there is at this
stage, no longer an infringement or threats to rights in the
Bill of
Rights to the students sought to be represented in a class action.
There is no longer a live issue that justifies their
inclusion in
these proceedings and I thus decline to grant Dladla leave to
intervene for the purposes of pursuing a class action.
Conclusion
107.
Had the matter remained a live issue, I would have granted an Order
discharging the
rule nisi
and dismissing the application but I
am not prepared to do so where the Order will have no practical
effect. I have already stated
that I am not prepared to grant a
blanket interdict.
108.
In the circumstances, I am constrained only to make an order in the
following terms:
108.1. Directing the
applicant to pay the costs of the application and counter-application
on the attorney and client scale.
____________________________
S.M
WENTZEL
ACTING
JUDGE OF THE HIGH COURT, GAUTENG DIVISION, PRETORIA
Date
heard: 3 June 2016
Date
of the judgment: 23 September 2016
Attorney
for the applicant: Jarvis Jacobs Raubenheimer Inc
Counsel
for the applicant: SG Maritz
Attorney
for the respondent: Lawyers for Human Rights
Counsel
for the respondents: Donrich Jordaan
[1]
The respondent issued a Notice in terms of Rule 16A that it intended
to raise a number of Constitutional issues including:
1. The applicability of
section 26(3) of the Constitution to university students who reside
in university residences;
2. The constitutional
tenability of obtaining an eviction order in the form of an interim
order without notice to the persons
who are to be evicted in terms
of the said eviction order; and
3. Whether it is a
requirement for a litigant who litigates on behalf of a class in
terms of section 38(c) of the Constitution
to be certified as
litigating on behalf of the class, where the case is constitutional
in nature, id est where said litigant
directly relies on a right
enshrined in the Constitution.