About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2015
>>
[2015] ZANCHC 22
|
|
Minister of Police v Harmse and Another (CA&R1/2015) [2015] ZANCHC 22 (31 July 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape
Division, Kimberley)
Saakno
/ Case number:
CA
& R 1/2015
Datum
verhoor/Date heard:
15
/ 06 / 2015
Datum
gelewer/Date delivered:
31
/ 07 /2015
In
the matter between:
MINISTER
OF
POLICE
Appellant
and
LUCILLA
BERNARDENE HARMSE
First
Respondent
MSOBOMVU
MUNICIPALITY
Second
Respondent
Coram: Williams
,
J
et
Erasmus, AJ
JUDGMENT
ERASMUS,
AJ
[1]
The appellant noted an appeal against the judgment of the Magistrate
Colesberg in respect of a refusal to grant an eviction
order in terms
of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act, No. 19 of 1998 (“PIE”)
on the basis that the
first respondent is in unlawful occupation of the property known as
[.....] Street, Towervallei, Colesberg
(“the property”).
It is common cause that the property belongs to the South African
Police Services (“SAPS”)
and that the SAPS is an organ of
State as envisaged in PIE.
[2]
It is common cause that the first respondent had been in occupation
of the property for a period of more than six months prior
to the
application being lodged. She started to occupy the property in
September 2013 and the application was only lodged
on 21 of July
2014.
[3]
It is the case of the appellant that the officials who allocated the
property to the first respondent did so without having
the necessary
authority to do so and that they thus acted
ultra
vires
.
It was alleged by the appellant that the actions of its officials
were
void
ab initio
and that the principles of e
stoppel
could not be applied against the appellant.
[4]
The first respondent opposed the application for her eviction from
the property in the Magistrate’s Court and denied that
she was
or is in unlawful occupation of the property. She further
denied that the officials who allocated the property to
her acted
ultra
vires
and
maintained that the appellant should be
estopped
from claiming that these officials acted
ultra
vires
.
The first respondent did not oppose the appeal.
[5]
The first respondent is a constable in the employ of SAPS and is
stationed at the Colesberg police station. The property
is
utilised to accommodate employees of the appellant who qualify to be
accommodated in official housing in accordance with the
appellant’s
Housing Policy.
[6]
The official Housing Policy of the appellant, which formed part of
the appellant’s papers in the Court
a
quo,
prescribes
the procedure to be followed when official housing becomes available
and also describes the process to be followed when
such housing is to
be allocated to an employee. Clauses 5 and 6 of the Housing
Policy of the appellant provides for the establishment
and
constitution of housing committees to allocate official housing to
employees who qualify in terms of the criteria stipulated
in the
policy.
[7]
The factual background to the application dates back to as far as
September 2013 when the property became vacant. On 19
th
of September 2013 the Station Commander at Colesberg Police Station
sent a written request to the Area Commissioner, De Aar, to
advertise
the property in accordance with the Housing Policy of the appellant.
[8]
The first respondent duly completed an application form for the
allocation of the property to her. As she was in desperate
need
of accommodation, she called a certain Colonel at the Area Management
based in De Aar. She explained her situation and was
informed that
she had permission to occupy the house immediately. As at 30
September 2013, the first respondent was still the only
applicant for
the specific property. She was again informed that she may
occupy the property. She was given the keys
by her Station
Commander and duly completed an undertaking in respect of the
property.
[9]
On 2 October 2013, the first respondent was informed by an official
of the De Aar Supply Chain Management Office that she had
to move out
of the house into which she had just moved. On the following
day the first respondent met with Colonel Du Preez
at the De Aar
office. He referred her to Colonel Fourie and after she had
explained the situation to him, Fourie perused
the file and
confirmed, in the presence of the first respondent, that no other
application had been received for the property in
question. Fourie
then called the Area Commissioner in De Aar and explained the
situation to him. Fourie thereafter
confirmed to the first
respondent that she may stay on in the house.
[10]
On 3 October 2013 the Station Commander of De Aar sent an e-mail to
the Station Commander of Colesberg, informing him
that the management
had decided that the first respondent should stay in the property and
that another constable who was also interested
in the property could
apply for any of the other three vacant state houses at Colesberg.
[11]
Later during October 2013, the first respondent was informed that she
should submit another application for the same
property. A
decision was then taken by the Provincial Supply Chain Management to
allocate the property to the other constable
who had applied for
housing. The first respondent was once again informed to vacate
the property.
[12]
The first respondent thereafter lodged a grievance with her employer
in terms of the prescribed grievance procedure of
the SAPS, but the
process has as yet not been finalized.
[13]
From the Housing Policy of the applicant it is quite clear that the
allocation of housing to employees of the appellant
who qualify for
such occupation, should be done by the housing committee at area
level. From the correspondence that form
part of the
application papers, it is clear that the initial allocation of the
property to the first respondent was done at area
level, but not in
accordance with the Housing Policy. From the papers it is clear
that the officials, on Area- and Provincial
level had not complied
with the applicant’s Housing Policy and that due procedure was
not followed. The official(s)
who gave the first respondent the
right/permission to occupy the property neither had the authority to
do so nor was it done in
accordance with the Housing Policy.
[14] Be that as
it may, the first respondent appears to have acted
bona fide
and
had taken all the necessary steps in compliance with the Housing
Policy, just as she was instructed to do by her superiors.
[15]
Against this factual background the learned Magistrate found that the
first respondent’s reliance on the defence
of
estoppel
was misplaced and that the first respondent was in unlawful
occupation of the property.
[16]
With reference to the case of
MANGAUNG
LOCAL MUNICIPALITY v MASHALE AND ANOTHER
[1]
the learned Magistrate found that the provisions of section 6 of PIE
do not apply as the applicant is an organ of State and the
property
belongs to the organ of State itself. The learned Magistrate found
that the provisions of section 4 of PIE were applicable,
more
especially sections 4(2) to 4(5) and that the applicant had to have
complied with same.
[17]
As the first respondent had been in occupation of the property for a
period of more than 6 months at the time of the
application, he found
that the provisions of section 4(7) were applicable and that it had
to be determined whether it was just
and equitable to evict the first
respondent.
[18]
The applicant’s appeal is based on the grounds that the learned
Magistrate erred and misdirected himself in dismissing
the
application by invoking the provisions of section 4(7), instead of
applying the provisions of section 4(8) of PIE. It was further
argued
that he applied the principles laid down in the decision of
NDLOVU
v NGCOBO
;
BECKER
AND ANOTHER v JIKA
[2]
incorrectly. I disagree. In terms of this decision, a
court has the discretion on whether or not to evict an unlawful
occupier. The discretion pertaining to the date of the eviction
only arises after the decision to evict has been taken.
[19] The relevant
sub-sections of section 4 of PIE read as follows:
“
(6) If
an unlawful occupier has occupied the land in question for less than
six months at the time when the proceedings
are initiated, a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering
all the relevant
circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed
by women.
(7) If
an unlawful occupier has occupied the land in question for more than
six months at the time when the proceedings
are initiated, a court
may grant an order for eviction if it is of the opinion that it is
just and equitable to do so, after considering
all the relevant
circumstances, including, ... whether land has been made available or
can reasonably be made available by a municipality
or other organ of
state or another land owner for the relocation of the unlawful
occupier, and including the rights and needs of
the elderly,
children, disabled persons and households headed by women.
(8) If
the court is satisfied that all the requirements of this section have
been complied with and that no valid defence
has been raised by the
unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine—
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph
(a).
(9) In
determining a just and equitable date contemplated in
subsection
(8)
, the court must have regard to all relevant factors,
including the period the unlawful occupier and his or her family have
resided
on the land in question.“
[20]
From the wording of section 4(7) of PIE it is clear that this
sub-section and not section 4(6) applies to unlawful occupiers
who
have occupied the land in question for more than six months, as the
first respondent has done. Section 4(8) deals with
the date on
which an unlawful occupier must vacate a property and this only
becomes relevant once the court is satisfied that all
the
requirements of section 4 have been complied with and that no valid
defence had been raised by the unlawful occupier and that
it was just
and equitable to evict. This implies that a court must take
into account all the relevant circumstances and the
special
circumstances referred to in section 4(7), including whether land has
been made available or can reasonably be made available
by an Organ
of State or another land owner for the relocation of the unlawful
occupier and also the rights and needs of the elderly,
children,
disabled persons and households headed by women. Having
considered the circumstances, a court may grant an eviction
order if
it is satisfied that it is just and equitable to do so.
[21]
I am satisfied that the court
a
quo
has
not misdirected itself in respect of the relevant sub-sections of
section 4 of PIE. Section 4(7) applies in this instance.
The learned Magistrate considered the relevant circumstances of the
first respondent and, against the background of the specific
facts of
this case, proceeded with an evaluation thereof when deciding whether
it was just and equitable to grant the eviction
order. Had the
court decided that it was just and equitable to evict the first
respondent, he would have considered sub-section
(8) and decided on a
date to evict the first respondent.
[22]
In the alternative, it was submitted on behalf of the applicant that
the learned Magistrate erred in the manner in which
he exercised his
discretion, by exercising it capriciously and not judicially.
[23]
It is trite law that a court of appeal shall not lightly interfere
with the exercise of a discretion of a court of first
instance.
In the case of the
GENERAL
COUNCIL OF THE BAR OF SOUTH AFRICA v GEACH AND OTHERS; PILLAY AND
OTHER RELATED MATTERS v PRETORIA SOCIETY OF ADVOCATES
AND ANOTHER;
BEZUIDENHOUT
v PRETORIA SOCIETY OF ADVOCATES
[3]
,
Nugent JA confirmed the legal position. He proceeded to explain that
where a discretion is conferred, it implies that the matter
for
decision calls for judgment, upon which reasonable people might
disagree. A Court on Appeal is restricted to determining
whether the court
a
quo
has embarked upon the process of the enquiry correctly. If so,
the Court on Appeal may not interfere with the decision, even
if it
disagrees with the result/conclusion. There are two enquiries to be
made in the process of exercising a discretion. The first
is to
establish the material facts. The second is to evaluate those facts
towards the correct objective. The learned
Judge
summarized the legal position as follows:
[4]
“
It is not sufficient that
the court made correct factual findings. It must also direct
itself in accordance with those facts.
Relevant factors must be
considered and irrelevant ones ignored. If manifestly relevant facts
do not feature in its evaluation,
or irrelevant facts are taken into
account, or facts are treated as pointing to one result, when they
clearly point to the opposite
result, the court misdirects itself and
the appeal court may interfere. It is in terms of those principles
that I approach this
case. In doing so I am mindful that the best,
indeed the only, evidence of what a court considers in arriving at
its decision is
the contents of its judgment and one can only
consider the question of misdirection by looking at the contents
of the judgment in the light of the evidence in
the record.
”
[24]
Mr. Khokho, on behalf of the applicant argued that the first
respondent failed to place all relevant facts before the
court.
I disagree. The facts and circumstances relied on by the court
a
quo
,
appear from the record. The mere fact that the first respondent
is not poor and destitute, does not mean that it would be
just and
equitable to evict her and her family from the property. There
is further no evidence for his submission that service
delivery of
SAPS is being hampered by the unlawful occupation of the property by
the first respondent. She is also an employee
of the SAPS.
The personal circumstances of the other official to whom the property
was to be allocated, are similar to those
of the first respondent.
There is also no evidence for the submission that further
occupation by the first respondent
would create havoc amongst
employees as they will in future not see the need to follow
procedures laid down by the housing committee.
Each case needs
to be evaluated on its own facts.
[25]
In considering whether the learned Magistrate exercised his
discretion judicially, I cannot conclude that the learned
Magistrate
had misdirected himself on the law and the application thereof.
After considering the relevant facts, contained
in the record, I can
further not conclude that he had committed any misdirection in
exercising his discretion in the enquiry.
He gave due
consideration to the relevant case law and the facts in a balanced
manner.
[26]
Due consideration was given to the circumstances of the first
respondent. She is a married woman with two minor
children.
The conduct of the first respondent, leading up to the taking of
occupation of the property and thereafter, does
not show any
mala
fides
or
disregard for the rights of the land owner. The first
respondent did everything that was required of her by her seniors
including signing the undertaking in favour of her employer when she
took occupation of the property. There is no allegation
that the first respondent has not complied with her obligations in
terms of the undertaking nor that she has not paid the rent
to SAPS
[27]
The predicament that the first respondent finds herself in was not of
her own doing, but through that of the officials
of the land owner.
Their conduct and disregard for the rights of the first respondent is
further evidenced by the fact that
alternative accommodation has not
been offered to the first respondent. It is further evidenced
by the fact that the grievance,
lodged by the first respondent on 11
December 2013, had not yet been resolved at the time of the
application. The outcome
sought therein was that she retains
occupation of the property for the remaining period of the lease of
three years, as set out
in clause 4.2 of the written undertaking
dated 30 September 2013.
[28]
I am satisfied that, given the circumstances relevant to the
application for the eviction order, the applicant was not
entitled to
an order for eviction and that the learned Magistrate was right in
finding that it was not just and equitable to evict
the first
respondent . The appeal accordingly falls to be dismissed.
The first respondent would then, in the absence
of any breach of her
written undertaking to her employer, or any other legally valid
termination of the right to occupy the property,
be entitled to
occupy it for the remainder of the period, as envisaged in clause 4.2
of the written undertaking dated 30 September
2013.
[29]
I MAKE
THE FOLLOWING ORDER:
“
THE
APPEAL IS DISMISSED.”
_________________________
S L ERASMUS, AJ
ACTING JUDGE
I agree.
_________________________
CC WILLIAMS, J
JUDGE
On
behalf of Appellant:
Adv. N.D.
Khokho (oio The State Attorney)
On
behalf of Respondents
:
Unopposed
[1]
2006(1) SA 269 (OPD) at
274D-I
[2]
2003(1) SA 113 (SCA) at par
[18]
[3]
[
2013]
1 All SA 393
(SCA)
at 434
[4]
At par [129]