About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 2
|
|
Mangaung Local Municipality v Pudumo and Others (3143/09) [2010] ZAFSHC 2 (7 January 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
R
EPUBLIC
OF SOUTH AFRICA
Application
No. :
3143/09
In
the application between:-
MANGAUNG
LOCAL MUNICIPALITY
Applicant
and
F.
A. PUDUMO
1
st
Respondent
M.
THOLA
2
nd
Respondent
M.
RASUTHA
3
rd
Respondent
M.
I. KHATLAKO
4
th
Respondent
M.
L. PANYA
5
th
Respondent
M.
E. KOLISANG
6
th
Respondent
M.
KODISANG
7
th
Respondent
M.
NGAKA
8th
Respondent
T.
MOCHADI
9
th
Respondent
D.
M. MOKHELE
10
th
Respondent
and
357 others as 11
th
to 367
th
Respondents as per Amended List of Respondents dated 8/07/09 (“Group
B respondents”),
and
14
8
others as 11
th
to 158
th
Respondents as per Annexure “A” to the Notice of
Intention to Oppose (“Group C respondents”).
_____________________________________________________
JUDGMENT:
VAN ZYL J
_____________________________________________________
DELIVERED
ON:
7
JANUARY 2010
_____________________________________________________
[1] This
is an application for a
declaratory
order that the occupants of the property known as a Portion of the
Remainder of the Farm Botshabelo 826, commonly known
as Botshabelo
West and also referred to as Extension 1 of Block F, Botshabelo, be
declared to be unlawful occupiers, combined with
an application that
such occupants be ordered to vacate the property, together with
appropriate ancillary relief.
CITING AND IDENTITY
OF RESPONDENTS
[2] Initially
only the
1
st
to 10
th
respondents were cited as respondents. Leave was however granted to
the applicant to amend its notice of motion and to amplify
its papers
by adding the names of any respondents who at the launching of this
application, had not yet been identified, but whose
identities might
become known to the applicant during the process of service of the
relevant papers. An amended list of respondents
was subsequently
filed on 8 July 2009, which list contains the names of the 1
st
to 10
th
respondents, as well as specific identified respondents as 11
th
to 104
th
respondents and furthermore unidentified occupants of certain
numbered structures/shacks as 105
th
to 367
th
respondents, on which occupants, both identified as well as
unidentified, service were effected (hereinafter referred to as
“Group
B respondents”).
[3] A
notice of intention to oppose was subsequently filed on 7 August
2009. This notice reflects that the opposition is being
done on
behalf of 1
st
to 10
th
respondents, as well as the respondents listed in annexure “A”
to the notice of intention to oppose as 11
th
respondent to 158
th
respondents (hereinafter referred to as “Group C respondents”).
During the hearing of the application, Mr Nel, on
behalf of the
aforesaid 158 respondents, confirmed that his mandate to oppose the
application is confined to such respondents.
[4] Although
the numerical numbering of the aforesaid three “groups”
of respondents overlaps, I consider it efficacious
to maintain the
reference to the numbered respondents as currently set out in the
amended list of respondents on the one hand and
annexure “A”
to the notice of intention to oppose on the other hand.
[5] For
the sake of clarity, I pause to furthermore explain that any
reference in this judgment to “respondents” without
specifically identifying them should be understood as a reference to
1
st
to 10
th
respondents, as well as Group C respondents.
RERERRAL TO TRIAL
[
6] After
having read the papers and despite the very capable arguments by Mr
Heymans, on behalf of the applicant, to the contrary,
I have come to
the conclusion that this matter should be referred to trial in terms
of Rule 6(5)(g). It is custom that no reasons
are advanced for such
an order. In this instance I also consider it appropriate not to
provide any reasons for this part of the
order. However, because of
the specific circumstances of this application and certain specific
arguments that were raised during
the hearing of the application, I
do consider it necessary to provide reasons for some of the other
orders I intend to make.
CONSIDERATION OF
NECESSITY OF MEDIATION PROCESS:
[7]
Mr Nel submitted that it is evident that there was no mediation
process between the parties prior to this application. With
reference to the judgment in
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
[2004] ZACC 7
;
2005 (1) SA 217
(CC), he submitted that whether mediation has been
attempted, is one of the relevant circumstances in deciding whether
an eviction
order would be just and equitable. He consequently
argued that should I decide to refer the matter to trial, the matter
should
first be referred to mediation prior to its referral to trial.
In
his opposition to the aforesaid, Mr Heymans referred to section 7(2)
of the Prevention of Illegal Eviction from Unlawful Occupation
of
Land Act No. 19 of 1998 (hereinafter referred to as “PIE”),
and submitted that in terms thereof, the applicant was
not compelled
to have attempted to mediate the dispute before having approached
court by means of the current application.
[8] Section
7(2) of PIE reads as follows:
“
If the
municipality
in
whose area of jurisdiction the land in question is situated is the
owner of the land in question, the member of Executive Council
designated by the Premier of the province concerned, or his or her
nominee, may, on the conditions that he or she may be determine,
appoint one or more persons with expertise in dispute resolution to
facilitate meetings of interested parties and to attempt to
mediate
and settle any dispute in terms of this Act: Provided that the
parties may at any time, by agreement, appoint another
person to
facilitate meetings or mediate a dispute, on the conditions that the
said member of the Executive Council may determine.”
[
9] The
question whether mediation has been tried, is in fact, as correctly
submitted by Mr Nel, one of the relevant circumstances
in deciding
whether an eviction order would be just and equitable. Furthermore,
it appears that the constitutional court has in
fact laid down the
principle that in applications of this nature, a court should, in
appropriate circumstances, order that mediation
be attempted. This
is not mediation referred to in section 7 of PIE, but compulsory
mediation ordered by the court as such. In
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
,
supra
,
the following relevant
dicta
appears
at 239B – D:
“
[39] In
seeking to resolve the above contradictions, the procedural and
substantive aspects of justice and equity cannot always
be separated.
The managerial role of the courts may need to find expression in
innovative ways. Thus, one potentially dignified
and effective mode
of achieving sustainable reconciliations of the different interests
involved is to encourage and require the
parties to engage with each
other in a proactive and honest endeavour to find mutually acceptable
solutions. Wherever possible,
respectful face-to-face engagement or
mediation through a third party should replace arm's-length combat by
intransigent opponents.
[40] Compulsory
mediation is an increasingly common feature of modern systems. It
should be noted, however, that the compulsion
lies in participating
in the process, not in reaching a settlement.
…”
And at 240B – D:
“
[42] Not
only can mediation reduce the expenses of litigation, it can help
avoid the exacerbation of tensions that forensic combat
produces. By
bringing the parties together, narrowing the areas of dispute between
them and facilitating mutual give-and-take,
mediators can find ways
round sticking-points in a manner that the adversarial judicial
process might not be able to do. Money
that otherwise might be spent
on unpleasant and polarising litigation can be better used to
facilitate an outcome that ends a stand-off,
promotes respect for
human dignity and underlines the fact that we all live in a shared
society.
[43] In South
African conditions, where communities have long been divided and
placed in hostile camps, mediation has a particularly
significant
role to play. The process enables parties to relate to each other in
pragmatic and sensible ways, building up prospects
of respectful good
neighbourliness for the future. Nowhere is this more required than in
relation to the intensely emotional and
historically charged problems
with which PIE deals. Given the special nature of the competing
interests involved in eviction proceedings
launched under s 6 of PIE,
absent special circumstances, it would not ordinarily be just and
equitable to order eviction if proper
discussions, and where
appropriate, mediation, have not been attempted.”
And
also
at 241D – 242A:
“
[45] In my
view, s 7 of PIE is intended to be facilitative rather than
exhaustive. It does not purport, either expressly or by necessary
implication, to limit the very wide power entrusted to the court to
ensure that the outcome of eviction proceedings will be just
and
equitable. As has been pointed out, s 26(3) of the Constitution and
PIE, between them, give the courts the widest possible
discretion in
eviction proceedings, taking account of all relevant circumstances.
One
of the relevant circumstances in deciding whether an eviction order
would be just and equitable would be whether mediation has
been
tried. In appropriate circumstances, the courts should themselves
order that mediation be tried
.”
(Own underlining)
And
lastly
at 246E – G:
“
[61] It
remains only to be said that this decision in no way precludes
further efforts to find a solution to a situation that is
manifestly
unsatisfactory to all concerned. In cases like the present, it is
particularly important that the municipality not appear
to be aligned
with one side or the other. It must show that it is equally
accountable to the occupiers and to the landowners. Its
function is
to hold the ring and to use what resources it has, in an even-handed
way, to find the best possible solutions. If it
cannot itself
directly secure a settlement, it should promote a solution through
the appointment of a skilled negotiator acceptable
to all sides, with
the understanding that the mediation proceedings would be privileged
from disclosure.
On
the basis of this judgment, a court involved in future litigation
involving occupiers should be reluctant to accept that it would
be
just and equitable to order their eviction if it is not satisfied
that all reasonable steps had been taken to get an agreed,
mediated
solution
.”
(Own underlining)
[
10] The
aforesaid principles were also confirmed in
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 217I – 218E:
“
[21]
Finally
it must be mentioned that secrecy is counter-productive to the
process of engagement. The constitutional value of openness
is
inimical to secrecy. Moreover, as I have already pointed out, it is
the duty of a court to take into account whether, before
an order of
eviction that would lead to homelessness is granted at the instance
of a municipality, there has been meaningful engagement
or, at least,
that the municipality has made reasonable efforts towards meaningful
engagement. In any eviction proceedings at the
instance of a
municipality therefore, the provision of a complete and accurate
account of the process of engagement, including
at least the
reasonable efforts of the municipality within that process, would
ordinarily be essential.
The absence of any engagement or the unreasonable response of a
municipality in the engagement process would ordinarily be a weighty
consideration against the grant of an ejectment order.
[22] This court
made the interim order because it was not appropriate to grant any
eviction order against the occupiers, in the
circumstances of this
case, unless there had at least been some effort at meaningful
engagement. It was common cause during argument
that there had been
none. The ejectment of a resident by a municipality in circumstances
where the resident would possibly become
homeless should ordinarily
take place only after meaningful engagement. Whether there had been
meaningful engagement between a
city and the resident about to be
rendered homeless is a circumstance to be considered by a court in
terms of s 26(3).
[23]
It
follows that the Supreme Court of Appeal should not have granted the
order of ejectment in the circumstances of this case, in
the absence
of meaningful engagement.
”
(Own underlining)
[
11] In
the current instance a mere bald statement was made on behalf of the
applicant to the effect that the applicant tried to
hold a meeting
but that its request was ignored and that the respondents did not
attend the meeting. No details whatsoever in support
of these
allegations, were given. It was furthermore alleged on behalf of the
applicant that the respondents` alleged refusal
to meet with the
applicant,
“
is to my
view a clear indication that their hands are not clean and that they
know that they are act
ing
wrongfully and even unlawfully”.
See founding affidavit,
p. 27, paragraph 12 and p. 42, paragraph 63.
These
allegations were denied by the respondents and they responded that
should a meeting have been arranged, the respondents would
have
attended such meeting. According to the respondents no effort
whatsoever was made by the applicant to mediate the dispute
between
the applicant and the respondents.
Based
on the well-known test set out in
PLASCON-EVANS
PAINTS LIMITED v VAN RIEBEECK PAINTS LIMITED
[1984] ZASCA 51
;
1984 (3) SA 623
(A), I am of the view that for purposes of
adjudication of this application the respondents` version in this
regard has to be accepted.
Moreover, even should the applicant’s
averments in this regard be accepted, the alleged attempt in any
event did not comply
with the required process as set out in the case
law referred to above which the applicants should have attempted
before launching
the application
[1
2] I
am consequently of the view that this dispute should in fact be
referred to a proper negotiation and/or mediation process before
the
court process continues.
[13] With
regard to the nature and contents of the mediation order I intend to
make, I allow myself to be lead by the nature of
the order that was
issued in
OCCUPIERS
OF 51 OLIVIA ROAD, BEREA TOWNSHIP AND 197 MAIN STREET JOHANNESBURG v
CITY OF JOHANNESBURG AND OTHERS
,
supra,
at 212D – G, read with paragraph 61 of the judgment in
PORT
ELIZABETH MUNICIPALITY v VARIOUS OCCUPIERS
,
supra
,
referred to in paragraph 9 above. From the last-mentioned
dicta
it is evident that the duty is on the Municipality (the applicant) to
initiate and facilitate such a mediation process. This duty
will
also be reflected in my order. For the same reason, the applicant is
in my view to bear the costs of any skilled negotiator
to be
appointed. The necessity to report back to the court by providing a
complete and accurate account of the process of engagement
or
mediation was explained and emphasised in
OCCUPIERS
OF 51 OLIVIA ROAD, BEREA TOWNSHIP AND 197 MAIN STREET JOHANNESBURG v
CITY OF JOHANNESBURG AND OTHERS
,
supra,
paragraph 21 thereof, already referred to above in paragraph 10
above.
CONTENTS
OF ORDER OF
REFERRAL
TO TRIAL
[1
4] In
my view the disputes of fact in this matter are incapable of
resolution on the papers and too wide-ranging for resolution
by way
of referral to oral evidence and therefore it should be referred to
trial. I take cognisance of the fact that when referring
an
application to trial, it is normally essential that the issues be
defined and that the appropriate order would be one directing
that
the notice of motion should stand as a simple summons, that the
declaration be filed within a fixed time and that the uniform
rules
dealing with pleadings and the conduct of trials thereafter apply.
See
HAUPT
t/a SOFT COPY v BREWERS MARKETING INTELLIGENCE
[2006] ZASCA 40
;
2006
(4) SA 458
(SCA) at 468J – 469B, read with footnote 1 thereof.
However, in this instance I am of the view that the issues are
evident,
clear and confined enough on the affidavits as they
currently stand. For this reason, and furthermore because I hope and
trust
that at least some of the issues will be resolved during the
mediation procedure, I do not intend defining the issues any further,
nor do I intend ordering that further pleadings need to be filed. I
consider it more appropriate that the parties themselves define
the
issues, as they then stand, after the negotiation and/or mediation
process during the rule 37 conference to be held prior to
the trial.
SCOPE OF EFFECT OF
ORDER
[1
5] With
regard to substantive order I intend to make, I am of the view that
only such respondents who are currently opposing this
application,
can and should be bound by the consequences of the order.
[16] In
view of the nature of this application and moreover in view of the
referral to mediation which I intend to order, I do not
consider it
apposite, as requested by Mr Heymans, to in the meantime grant any
relief by default against the respondents who are
not currently
opposing this application. Such relief should, in my view, stand over
for later decision during the hearing of the
trial (if any). I record
that I am very much aware of the possible practical problems that
might be ensued as a result of the fact
that there currently are
different “groups” of respondents living at the property,
but some of which will now be bound
by this order and some of which
will not. However, it is impossible to make an order that will
obviate all possible practical problems
for all parties concerned. In
any event, it will still be open to the parties hereto and/or the
mediator and/or the trial court
to decide whether to include or join
any further respondents and/or group(s) of respondents to the
mediation process and/or the
possible eventual trial and/or court
order in order to ensure an effective outcome to these proceedings.
COSTS
[1
7] In
my view it is appropriate that the costs of the application ought to
be reserved for decision by the trial court. Should
the parties be
able to settle the matter during the mediation process, they should
endeavour to also settle the issue of costs,
which, considering that
the applicant launched this application without any or proper prior
endeavours to mediate the dispute between
the parties, will probably
be for the account of the applicant.
ORDER
S
[18] Consequently
the following orders are made:
A:
As
between applicant and 357 others as 11
th
to 367
th
respondents as per Amended List of Respondents dated 8/07/09 (“Group
B respondents”):
1.
The
relief claimed, including costs, are to stand over for later decision
by the trial court referred to in paragraph 6 hereunder.
B:
As
between applicant and 1
st
to 10
th
respondents
as well as 148 others as 11
th
to 158
th
respondents
as per Annexure “A” to the Notice of Intention to Oppose
(“Group C respondents”).
1. The
applicant is ordered to forthwith initiate a process in conjunction
with the
aforesaid
respondents to engage with each other meaningfully and as soon as it
is possible for them to do so, in an effort to resolve
the
differences and difficulties aired in this application in the light
of the values of the Constitution, the constitutional and
statute
duties of the municipality and the rights and duties of the citizens
concerned.
2. Should
the parties fail to meaningful engage with each other as aforesaid
and/or fail to secure a settlement, the applicant is
to appoint a
skilled negotiator with expertise in dispute resolutions, which
negotiator is to be acceptable to both parties, to
arrange and
facilitate a meeting between the parties and to attempt to mediate
and settle the disputes in this matter.
3. Legal representation
is to be allowed during the aforesaid process (processes), should any
or both of the parties so prefer,
the costs of which will be for each
party’s own account.
4. Each
of the two sets of parties are to file an affidavit providing a
complete and accurate account of the process of engagement
and/or
mediation and the outcome thereof. Should he/she so prefers, the
appointed mediator may also file a report providing a complete
and
accurate account of the process of mediation and the outcome thereof.
The affidavits as well as the report (if any) are to
be filed as soon
as possible after conclusion of the mediation process, and in any
event not later than 16 March 2010, or such
later date as the parties
may agree to.
5. The
costs of the appointed negotiator, if any, are to be borne by the
applicant.
6. Should
the parties not be able to procure an agreed mediated solution, the
application is referred to trial on the following
terms:
6.1
. The
current affidavits are to stand as pleadings and as such the
pleadings are to be deemed to be closed.
6.2
The
Uniform Rules of Court pertaining to trial actions shall
thereafter apply.
6.3 T
he
trial court will be allowed to take cognisance of the affidavits and
report (if any) referred to in paragraph 4 above and will
be entitled
to determine the evidential value thereof and/or whether and/or to
what extend further evidence and/or cross-examination
pertaining to
the contents thereof, will be allowed or not.
6.4
The
costs of the application are to stand over for later adjudication.
[7] The
registrar is requested and directed to
enrol
this matter for trial on a preferential basis as and when requested
thereto by one or both parties.
____________
C. VAN ZYL, J
On
behalf of applicant: Adv. P.J. Heymans
Instructed by:
E G
Cooper Majiedt
Inc.
Bloemfontein
On
behalf of 1
st
to 10
th
respondents and Group C respondents:
Dr P W
Nel
Instructed
by:
Justice
Centre
B
loemfontein
/em