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[2012] ZAKZPHC 51
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Shepstone House Two Ltd v Msunduzi Municipality and Others (3796/2012) [2012] ZAKZPHC 51 (7 August 2012)
IN
THE KWAZULU HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 3796/2012
In
the matter between:
SHEPSTONE
HOUSE TWO LTD
…..................................................................
Applicant
and
MSUNDUZI
MUNICIPALITY
….............................................................
First
Respondent
THE
OCCUPIERS OF SHEPSTONE HOUSE
…...........................
Second
Respondents
SUHEENA
INVESTMENTS CC
….......................................................
Third
Respondent
J U D G M E N T
KOEN
J
:
INTRODUCTION
:
[1]
This is an application in which the Applicant claims relief in the
following
terms:
1. That this matter be heard as one of
urgency in terms of Rule 6 (12) and that the forms and services
provided for in Rule 6 be
and are hereby dispensed with.
2. That a Rule
nisi
be and is
hereby issued calling upon the Respondent to show cause, if any, to
this Honourable Court on the day of 2012 at 09h30
why an order in the
following terms should not be granted:-
2.1 That the Respondent, or any person
through it be and are hereby interdicted and restrained from
withholding or switching off
the electricity supply to the
Applicant’s premises situated at 5/8 Chancery Lane,
Pietermaritzburg, KwaZulu-Natal, pending
the finalisation of this
application.
2.2 That the Respondent is directed to
do all things necessary and incidental to restore the supply of
electricity to the Applicant’s
premises situated at 5/8
Chancery Lane, Pietermaritzburg, KwaZulu-Natal.
2.3 That the Respondent and its
employees are hereby interdicted from interfering with the electrical
connections relating to the
building described as Shepstone House and
situated at 5/8 Chancery Lane, Pietermaritzburg.
2.4 That the Respondent be ordered to
pay the costs of this application on an attorney and client scale.
2.5 Further and/or alternative relief.
[2] A Rule
nisi
with interim
relief in terms of paragraphs 2.1 and 2.2 quoted above, as prayed in
the Motion was granted on 11 May 2012.
[3] The interim relief granted was
anticipated by the First Respondent, which in addition sought certain
further relief in its counter
applicatioin.
[4] Pursuant to the counter
application, an order was granted on 24 May 2012 in the following
terms:
“
1.
The order granted on 11
th
May 2012 is amended by the deletion of paragraph 2 thereof (that is
the paragraph providing for interim relief).
2.
A
rule nisi
be and is hereby issued calling upon the Applicant
to show cause on the adjourned return day of the Applicant’s
rule nisi
why an order in the following terms should not be
granted:-
The
Respondent be and is hereby authorized (though its officials) to:-
enter
the premises at 225 Longmarket Street, Pietermaritzburg (referred
to as Nedbank Building) and inspect the Bulk Meter
and electrical
connection therein; and
terminate
the municipal supply of electricity from whatever source to
Shepstone House.
The
Applicant be and is hereby ordered to vacate the premises known as
Shepstone House, with the exclusion of the Ground Floor
thereof.
The
Sheriff of the High Court (assisted by Applicant’s (it should
read Respondent’s) Fire and Disaster Management
Department)
be and is hereby directed and authorized to remove any persons
occupying any floor in Shepstone House above the
Ground Floor.
The
Applicant be and is hereby interdicted and restrained from
reoccupying the building above the Ground Floor or allowing tenants
other than those listed in annexure SS11 to the affidavit of
Surendra Singh deposed to on 23 May 2012 to occupy such premises
until the relevant authority is issued by the Respondent.
The
Applicant is to pay the costs of the application and this counter
application on the scale as between attorney and client
The
provisions of paragraphs 2.1, 2.2 and 2.4 be and are hereby granted
as interim orders pending the final determination of this
application.
All
issues of costs are reserved.
The
occupiers of Shepstone House are joined as a Second Respondent and
Suheena Investments CC is joined as the Third Respondent
in the
counter-application.”
[5] The interim relief which the First
Respondents sought in terms of which occupiers occupying any floor
other than the ground
floor were to be removed, was not granted
because at that stage these occupants were not party to the
application. It was to cater
for this that the court on that day
ordered the occupiers of Shepstone House to be joined as the Second
Respondents.
[6] The issues for determination in
this application are according:
1. Whether the Rule
nisi
obtained
by the Applicant should be confirmed;
2. Whether the Rule
nisi
obtained by the First Respondent on 24 May 2012 and subsequently
extended, should be confirmed;
3. Costs.
BACKGROUND
:
[7] The Applicant is the owner of the
immovable property situated at 5/8 Chancery Lane, commonly referred
to as Shepstone House.
The building consists of shops on the ground
floor, a parking area on the first floor and twelve floors of office
space, five floors
of which are used for residential accommodation
with
the balance apparently remaining vacant.
[8] The First Respondent is the
Msunduzi Municipality which is the Municipality having jurisdiction
over the property belonging
to the Applicant and which is responsible
for the provision of electricity to residents and others who reside
within its boundaries,
including responsibility for the provision of
any electricity to the Applicant’s premises.
[9] The Second Respondents are the
occupiers of Shepstone House joined in terms of the order granted on
24 May 2012. They are represented
by attorneys Surendra Singh and
Associates, Mr Surendra Singh also having been the deponent to the
Applicant’s founding affidavit.
The occupiers through one
Mchunu delivered an affidavit in which they associate themselves with
the version of the Applicant, but
put up no further evidence of their
own. They also rely on the provisions of the Prevention of Illegal
Eviction from an Unlawful
Occupation of Land Act, 1998 (hereinafter
referred to ‘PIE’).
[10] The Third Respondent is Suheena
Investments CC, the owner of the adjoining immovable property
referred to as the Nedbank Building.
Common to the ownership and
control of both the Third Respondent and the Applicant is Mr Singh,
the deponent to the founding affidavit
on behalf of the Applicant.
[11] All the parties were represented
by counsel at the hearing of this application, the Applicant’s
counsel also representing
the Third Respondent.
[12] A number of disputes arise on the
papers. The following is however common cause;
(a) On 7 February 2002 an order was
granted in favour of the First Respondent against the Applicant and
Mr Surendra Singh (The Third
Respondent also having been a Third
Respondent in that application) interdicting Mr Singh and the
Applicant from conducting any
building work or any alteration or
erection of any kind whatsoever at Shepstone House until the First
Respondent had approved plans
for such building, alteration or
erection in terms of s 14 of the National Building Regulations and
Building Standards Act No 103
of 1977 (hereinafter referred to as
‘the Building Act’). Mr Singh and the Applicant were also
interdicted and restrained
from occupying or using the said building
until the First Respondent had issued a valid certificate of
occupation in terms of s
14 of the Building Act. In addition the
Applicant and Mr Singh were ordered to vacate the said building above
the first floor by
15 March 2002 together with any other persons who
occupy the building through one or both of them. The First Respondent
was authorized
to demolish all building work alterations or erections
not authorised by it.
(b) Six years later a further order
was obtained under case No. 4914/08 which
inter alia
directed
the occupiers of Shepstone House (excluding the commercial tenants
who occupied the commercial premises on the ground floor)
to vacate
Shepstone House by 16h00 on 14 March 2008.
(c) Both the aforesaid orders and
interdicts are still current. Accordingly both the Applicant and Mr
Singh are interdicted from
occupying the building and persons in
occupation of the floors other than the ground floor are to vacate
the building.
(d) On the Applicants own version it
utilizes five floors of the building above the ground floor for
residential accommodation.
(e) No certificate of occupation in
terms of s 14 (1) of the Building Act has been issued to the
Applicant in respect of such accommodation;
(f) At the time the application was
brought, no power had been cut off by the First Respondent to
Shepstone House. All the First
Respondent was doing was investigating
a potential unlawful supply of power from the Nedbank Building to
Shepstone House, which
on the Applicant’s own version was the
case, it contending that it had authority to do so, alternatively
electricity was
supplied in Shepstone House from a generator which
had been installed by the Applicant;
(g) The Applicant does not have an
agreement with the First Respondent for the supply of electricity to
the property on which Shepstone
House is situated, the supply which
previously was in place having been terminated at the Applicant’s
request during 2008;
(h) The Applicant alleges that it had
applied for a consolidation of “Shepstone House and Nedbank
Building into one property
for practical reasons”. It is common
cause that this request was never granted, on the Applicant’s
own version;
(i) The Applicant concedes that since
July 2011 it has utilized the supply of electricity to the Nedbank
Building, which is situated
on portion 3 of earth 2522
Pietermairtzburg, to Shepstone House;
(j) A copy of the application papers
was, pursuant to the joinder of the Second Respondents, served by the
First Respondent on the
Second Respondents;
(k) On 25 May 2012 the First
Respondent’s Attorneys addressed a letter to the Second
Respondents advising that no certificate
of occupancy had been issued
in respect of the building, that in the view of its safety officials,
the occupation of the building
posed a danger to them and that there
is a risk of harm, injury or death if an emergency arises, that they
were required to vacate
the building with immediate effect and
certainly by not later than the 4
th
June 2012, that they were invited to
address any queries or make representations or communications to the
First Respondent with
the First Respondent’s attorney and to
engage meaningfully
1
with him before an order was sought
for their eviction.
THE APPLICANT’S
CONTENTIONS
:
[13] The Applicant contends that the
central dispute in the matter is whether the Applicant’s
building is safe and fit for
occupation due to alleged defects in the
fire and electrical system. It contends that in the light of the
affidavits exchanged,
there are factual disputes necessitating a
referral to oral evidence in accordance with a draft order which was
filed, raising
issues
inter alia
such as whether the Applicant
has complied with the electrical requirements of the First
Respondent, whether the electrical system
in the Nedbank building was
bypassed to the Applicant, whether the Applicant has complied with
the First Respondent’s fire
safety requirements, whether the
fire detection system on the Applicant’s premises is in working
order and whether the First
Respondent has applied its by-laws in an
arbitrary and unfair manner with regard to any buildings owned by Mr
Singh, whether personally
or through juristic entities.
THE CONTENTIONS OF THE
OCCUPIERS
:
[14] The Second Respondents have not
raised any defences over and above that raised by the Applicant, save
for the following:
(a) They contend that the First
Respondent must respect the provisions of PIE and proceed by way of
PIE to remove tenants from the
building; and
(b) That a court with reliance on the
dicta by Sachs J in
Port
Elizabeth Municipality v Various Occupiers
2
,
‘should be reluctant to grant an eviction against relatively
settled occupiers unless it is satisfied that a reasonable
alternative is available, even if it is an interim measure pending
ultimate access to housing in a formal housing programme’.
Accordingly the contention is that the
First Respondent has an obligation to provide alternative
accommodation to the occupiers
of Shepstone House
3
.
(c) Second Respondents contend that
the absence of a certificate of occupation is not through any fault
of theirs and it is related
to a problem between the Applicant and
the First Respondent.
THE FIRST RESPONDENT’S
CONTENTION
:
[15] The First Respondent contends,
correctly in my view, that the matter is capable of being decided on
the undisputed common cause
facts without any referral to oral
evidence; indeed that it is capable of decision on the Applicant’s
version.
THE SUPPLY OF ELECTRICITY TO
SHEPSTONE HOUSE
:
[16] The Electricity supply bylaws of
the First Respondent provide
inter alia
that :
‘
(10) (1) No person shall be
entitled to a supply of electricity or to use or continue to use a
supply of electricity unless he has
entered into a contract with the
Council.
…
No person shall sell or supply
electricity obtained from the Council for use on any premises other
than those in respect of which
he has entered into a contract with
the Council, and no person shall knowingly permit or suffer any such
sale or supply to be
made.’
[17] The Applicant does not contend
that it has an electricity supply contract with the First Respondent
or Shepstone House, which
is a prerequisite to requiring the supply
of any electricity to those premises.
[18] All the Applicant contends is
that Mr Singh was allegedly advised by Mr Dorfling to supply a bulk
meter in the Nedbank Building,
adjacent to Shepstone House, and that
the bulk meter could service both buildings.
[19] Mr Dorfling however denies this.
This is not a pertinent issue which the Applicant has sought to refer
to oral evidence. However,
and in any event, it is trite law that an
official cannot override the provisions of a by-law.
[20] The Applicant has accordingly not
complied with by-law 10 (1).
[21] The Applicant concedes that since
July 2011 it has utilized the supply of electricity to the Nedbank
building, to Shepstone
House, which is situated on a different
property.
[22] This would be in violation of
by-law 11. The court was accordingly entirely within its rights to
grant the order which it did
on the 24 May 2012 allowing the First
Respondent on an interim basis to enter the premises of the Nedbank
building and inspect
the bulk meter and electrical connection
therein.
[23] Notwithstanding the order of 24
May 2012 and the termination of the electricity supply from the
Nedbank building to Shepstone
House on 11 June 2012, on 13 June 2012
it was found that the electricity supply was restored, as confirmed
on the 12 July 2012.
[24] Applicant has not shown any right
to an electricity supply to Shepstone House. In addition it is
unlawful for it to supply
electricity to Shepstone House from the
Nedbank building.
THE OCCUPANCY OF SHEPSTONE HOUSE
ON THE FLOORS ABOVE THE GROUND FLOOR
:
[25] Section 14 of the Building Act
provides :
‘
14. Certificates of
occupancy in respect of buildings. ---
(1) A local authority shall within 14
days after the owner of a building of which the erection has been
completed, or any person
having an interest therein, has requested it
in writing to issue a certificate of occupancy in respect of such
building –
(a) issue such certificate of
occupancy if it is of the opinion that such building has been erected
in accordance with the provisions
of this Act and the conditions on
which approval was granted in terms of section 7, and if certificates
issued in terms of the
provisions of subsection (2) and, where
applicable, subsection (2A), in respect of such building have been
submitted to it;
[Para. (a) substituted by s. 7 (a) of
Act No. 62 of 1989.]
(b) in writing notify such owner or
person that it refuses to issue such certificate of occupancy if it
is not so satisfied or if
a certificate has not been so issued and
submitted to it.
(1A) The local authority may, at the
request of the owner of the building or any other person having an
interest therein, grant
permission in writing to use the building
before the issue of the certificate of occupancy referred to in
subsection (1), for such
period and on such conditions as may be
specified in such permission, which period and conditions may be
extended or altered, as
the case may be, by such local authority.
[Sub-s.(1A) inserted by s. 7 (b) of
Act No. 62 of 1989.]’
[26] It is common cause that the
Applicant does not have a certificate in terms of s 14 of the
Building Act allowing the occupancy
of the floors above the ground
floor of Shepstone House. Accordingly it is unlawful for the building
other than the ground floor
to be occupied.
[27] The First Respondent specifically
refuses to issue the certificate on the basis that the Applicant has
not complied with the
First Respondent’s requirements relating
to fire prevention and control.
[28] Whether the Applicant has
complied or not, is not for this court to decide in these
proceedings, where the ejectment of the
occupiers is claimed on the
basis that no certificate of occupancy has been issued. If a
certificate of occupancy should have been
issued and/or was wrongly
withheld, then the Applicant should pursue a remedy either of a
mandamus
against the First Respondent pertinently raising this
issue so that expert evidence can be adduced in respect thereof,
alternatively
to possibly consider some form of review due to the
First Respondent’s refusal to issue such a certificate.
[29] The fact that such certificate of
occupation has not been issued, as also supported by the court orders
of 2002 and 2008, renders
any continued occupation of Shepstone House
unlawful.
THE APPLICATION OF PIE
:
[30] The Second Respondents contend
that the First Respondent should first apply the provisions of PIE.
[31] The First Respondent argues that
PIE has no application in this matter because the occupiers are in
Shepstone House with the
Applicant’s consent and so are not
unlawful occupiers as defined in PIE.
[32] PIE defines ‘unlawful
occupier’ as ‘a person who occupies land without the
express or tacit consent of the
owner or person in charge, or without
any other right in law to occupy such land …’.The
occupiers have the consent
of the Applicant to occupy Shepstone
House. Accordingly, the further terms of this definition would seem
to find no application.
If that is correct then PIE would not find
application.
[33] In any event, even if they were
unlawful occupiers,
4
the Second Respondents have not taken
this court into their confidence by advancing any particular grounds
which would militate
against the court exercising a discretion to
order their ejectment. Indeed, their ejectment might be in their own
best interest
and safety.
[34] The occupiers have been provided
with a copy of the papers. They have had ample opportunity to
consider and find alternative
accommodation or to at least raise that
aspect with the First Respondent or its attorney. The First
Respondent’s attorney
has invited them to interact with him,
but such invitation was not taken up. Although the occupiers have not
provided any details
of their occupancy and status, they do not
appear to be homeless persons who have squatted on a vacant piece of
land. They are
tenants apparently paying commercial rentals, who
would simply have to find alternative rental accommodation. There has
been no
suggestion by them that such rental accommodation would not
be available in the greater municipal area of the First Respondent.
Accordingly there is no basis, assuming PIE to apply, that I could
exercise a discretion in favour of them remaining on in Shepstone
House.
[35] Safety considerations in any
event necessitate their removal. There is nothing more the First
Respondent could do after having
created an opportunity where the
Second Respondent could have interacted with the First Respondent’s
attorney, but no such
interaction was forthcoming.
5
COSTS
:
[36] I am in agreement with the
submissions advanced by the First Respondent that:
(a) The Applicant’s behaviour
has been egregious in that the Respondent’s bylaws have been
violated and/or ignored.
The Applicant has also disregarded previous
court orders;
(b) The Applicant failed to disclose
the existence of the two previous court orders when it approached
this court to obtain the
initial relief on less than one and a half
hours notice to the First Respondent, which notice was wholly
inadequate;
(c) The Applicant failed to
demonstrate even a
prima facie
case.
[37] It is accordingly appropriate
that the Applicant pay the costs relating to the two applications
(excluding reserved costs dealt
with below) on the attorney and
client scale.
[38] Where costs have previously been
reserved it is appropriate that the Applicant also be directed to pay
such costs, but on a
party and party scale.
THE ORDER
:
[39] The order granted is as follows:
(a) The Rule
nisi
issued on 11
May 2012 at the instance of the Applicant is discharged with costs on
the attorney and client scale;
(b) The Rule
nisi
granted on 24
May 2012 at the instance of the First Respondent (which contains a
prayer for costs on the attorney and client scale)
is confirmed;
(c) The Applicant is directed to pay
any and all costs that were reserved from time to time, not already
covered by the costs orders
granted in paragraphs 1 and 2 above, on
the party and party scale.
__________________________
DATE OF HEARING: 27/7/2012
DATE
OF JUDGMENT: 7/8/2012
APPLICANT’S
COUNSEL: ADV R B G CHOUDREE S C with
MS
R SINGH
APPLICANT’S
ATTORNEYS MESSRS RAJEETH MEWALALL & CO
REF:
MR MEWALALL
1
ST
RESPONDENT’S COUNSEL: ADV A J RALL SC
1
ST
RESPONDENT’S ATTORNEYS: DIEDRICKS ATTORNEYS
REF:
MR J DIEDRICKS
Tel:
033 342 9808 / 079 054 1307
2
ND
RESPONDENT’S COUNSEL: MS SINGH
2
ND
RESPONDENT’S
ATTORNEYS: SURENDRA SINGH AND ASSOCIATES
REF: M SINGH/SUE
1
As
that duty was described in
Occupiers of 51 Olivia Road, Berea
Township and 197 Main Street, Johannesburg v City of Johannesburg
[2008] ZACC 1
;
2008 (3) SA 208
(CC) at paragraphs [13] to [14].
2
2005
(1) SA 218
(CC)
3
Blue
Moonlight Properties v Occupiers of Seratoga Avenue
[2008] ZAGPHC 275
;
2009
(1) SA 470
W;
4
In
the sense of them occupying a building in respect of which
occupation is unlawful due to a certificate of occupation not having
been issued.
5
Occupiers
of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg
v City of Johannesburg and Others
[2008] ZACC 1
;
2008
(3) SA 208
CC at paragraph [14].