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[2009] ZAKZPHC 16
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Ithubalethu Hospitality Enterprise (Pty) Ltd v Ntenga and Others (363/2009) [2009] ZAKZPHC 16 (24 April 2009)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE NO
: 363/2009
In
the matter between:
ITHUBALETHU HOSPITALITY ENTERPRISE
(PTY) LIMITED
Applicant
and
B T NTENGA AND 507
OTHERS
First to 507th Respondents
IN an application for the
rescission of an eviction order and ancillary relief
JUDGMENT
SKINNER,
AJ:
1
The
present application was brought as a matter of urgency by the
respondents (and I will deal subsequently with who the respondents
are) for rescission of an order granted in this Court on 1 April 2009
evicting the respondents from the Ingqayizivele Hostel and
adjoining
properties in Madadeni, Newcastle. The relief which is sought
before me is to interdict the applicant from effecting
or causing to
be effected any evictions in terms of the said order, allowing all
and any respondents already evicted pursuant to
the order to resume
occupation and directing the sheriff to assist the respondents to
return to their places of occupation all
possessions removed pursuant
to such evictions.
2
In the
founding affidavit of the rescission application, the deponent one
Ndwandwe averred that he had authority “to cause
this
application to be brought on behalf of all the respondents who have
not yet opposed the application”. This rather
vague
allegation was, not surprisingly, challenged on behalf of the
applicant. In reply the deponent annexed a power of attorney
which he averred had “been signed by most if not all of the
respondents”. The power of attorney indicated that
the
attorneys had been authorised to act in the rescission application on
behalf of the signatories. Annexed to it were approximately
19
pages with various signatures appearing thereon next to the numbered
respondents or, where the persons had not already been
identified in
the main application as being respondents, next to a manuscript entry
reflecting name and surname. Mr Rall
SC on behalf of the
applicant very fairly and properly conceded that for the purposes of
the present application, he was not going
to pursue the point any
further that the deponent to the founding affidavit in the present
application was authorised to represent
various respondents.
3
It is
necessary to deal briefly with the concept of who the respondents
are/were. In the main application (being the earlier
application for the eviction of the respondents) the deponent on
behalf of the applicant had averred that the first to
508th respondents
were the persons who resided in flats at the
Ingqayizivele Hostel, Madadeni, Newcastle, and were persons who had
originally had
leases with Iscor Limited to occupy such premises.
The 509th and further respondents were the occupiers of various
other
flats or shacks whose names and personal particulars were not
known to the applicant. It was averred that adjoining the
hostel
site was Erf J6 which had no permanent structures on it but on
which various illegal temporary shacks had been erected. The
manuscript list annexed to the replying affidavit in the rescission
application reflected the names of the persons who fell into
the
category of occupying the flats or Erf J6 but without any lease ever
having been concluded and therefore not being part of
the 508
identified respondents. Other than where it is necessary to
distinguish separate categories of defences, I
refer in my
judgment loosely to “respondents” as indicating the
hostel dwellers as well as those occupying Erf J6.
4
It
is also necessary to deal briefly with the main application. It
was launched on 16 January 2009. According to the
returns of
service at pages 130 and 135 of the main application, service was
effected on 26 and 27 January 2009 from 8am to 12
noon, either by
personal service or by service on a person apparently
residing/employed at the particular flat or where no occupant
was
found by affixing copies to the main entrance door of the dwelling.
Notices of opposition were delivered on behalf of
the 49th, 53rd,
129th, 184th, 245th, 254th, 315th, 338th, 357th, 385th and
444th respondents. The applicant
then brought an
application in terms of Rule 6(11) for an order in terms of
Section
4(2)
of the
Prevention of Illegal Eviction From and Unlawful
Occupation of Land Act No. 19 of 1998
directing the sheriff to serve
copies in English and Zulu of the notice indicating that the matter
would be heard on 31 March 2009.
An order was granted on 12
March 2009 authorising such service.
5
This
order required,
inter
alia,
service on the Newcastle Municipality by no later than 17 March
2009. Service was in fact effected on the municipality on
18
March 2009 and accordingly the hearing on 31 March 2009 was adjourned
to the following day to enable the respondents and the
municipality
to have the full number of requisite days to oppose the matter.
6
On 1
April 2009 the matter was not opposed (other than by the eleven
respondents previously referred to by numbers) and an order
was
granted ordering all the various respondents occupying the hostel and
Erf J6 (other than the eleven numbered respondents referred
to
previously in respect of whom notice of opposition had been entered)
to vacate the property by no later than 8 April 2009.
It is
this order which the present respondents seek to rescind.
7
It
emerges from the affidavits in the present application that a
committee was apparently formed by the occupiers of the properties
and this committee met with an attorney in Newcastle, one Arndt.
According to the deponent in the rescission
application, this
delegation of respondents instructed the attorney to oppose the
application on behalf of all the respondents.
As I have
indicated, notice of opposition was only delivered on behalf of
eleven of the various respondents.
8
Mr
Arndt deposed to an affidavit which he made available to both the
applicant and the respondents’ representatives.
According
to his affidavit three persons consulted him at the beginning of
February 2009 and handed to him a notice of motion in
the present
matter. He said that he tried to explain to them in English
what the application was about but “clearly
got the impression
that they did not fully understand me”. He then requested
a secretary of his firm who was fully
fluent in English and, he
thought, in isiZulu to interpret for him. His affidavit states
that he:
“…
enquired through the interpreter,
Iris Griffiths, as to whether all or only certain of the respondents
wished to instruct us to
oppose the application on their behalf.
Those consulting me enquired through the interpreter, Iris Griffiths,
as to whether
at all it is possible that a committee consisting of a
number of respondents could oppose the application on behalf of all
the
respondents involved. I indicated to those consulting me
that as far as I am concerned, each and every respondent should give
notice to oppose the application”.
9
He
stated further that the delegation then left his office indicating
that they wished to consider and discuss the matter.
He did not
at that stage open a file nor charge a consultation fee.
He continued that on or about 12 February 2009
a number of persons
met with him and advised that they had a deposit. He again made
use of the same person as interpreter
and “
instructed her to
enquire as to exactly whom Acutt & Worthington is to act for.
Iris Griffiths later informed me that
we are only to act on behalf of
eleven respondents”.
He instructed counsel to draft
an opposing affidavit which was then served in respect of those
eleven respondents.
10
During
the beginning of April 2009 certain respondents consulted him with a
copy of the court order dated 1 April 2009. He
stated:
“
I at that stage explained to those
instructing me that instructions were given to Acutt &
Worthington Incorporated to oppose
the application only on behalf of
certain respondents. I furthermore explained to those
consulting me that the respondents
against whom the court order was
granted will be subject to being ejected if they are prepared to
vacate voluntarily. No
one at that stage consulting me
indicated to me that Acutt & Worthington Incorporated had
instructions to oppose the application
on behalf of all the
respondents.”
11
In
reply an affidavit was filed on behalf of the respondents by one
Mkhonza. Page 2 of such affidavit was missing from the telefaxed
copy
placed before me as well as from the copies of all the
representatives in court. What emerged however was that the
deponent averred that:
“
We understood, from what was relayed to us
by the interpreter, that Mr Arndt recommended that we should appoint
a group of 10 “named”
respondents to represent all the
respondents. We were told that if the application was
successfully opposed by this group,
such action would benefit all the
respondents...… I confirm that we did, at our second
meeting of Mr Arndt, give him
a list of eleven named respondents as
we understood the application would be opposed in the name of these
eleven respondents for
the benefit of all respondents. In
particular, we were told that if the application was successfully
opposed in the name
of these eleven respondents it would benefit all
the respondents, since the application would be defeated.”
12
In
dealing with the meeting subsequent to the eviction order being
received, the deponent significantly does not confirm or deny
the
averment by Mr Arndt that instructions had only been given to him to
oppose on behalf of certain respondents. He merely
avers that:
“
I confirm that Mr Arndt did explain to us
that all respondents, but for the eleven, would be evicted in terms
of the eviction orders.
But he said that, if the eleven
respondents were successful, the other respondents would be entitled
to go back because the victory
would be theirs as well.”
13
As
is apparent, there is a vast difference between the two versions.
Mr Crampton, on behalf of the respondents, attached great
weight to
the statement by Mr Arndt that because he himself did not understand
isiZulu he could not exclude the possibility that
there could have
been an error in communication. I find it difficult to
understand how, even if Ms Griffiths was not perfectly
fluent in
isiZulu, an indication by Mr Arndt that each and every respondent
should give notice to oppose the application could
have been conveyed
as a recommendation from Mr Arndt that a group of ten respondents
should be appointed to represent all the respondents.
14
It is
trite that parties seeking interim relief must establish a
prima
facie
right though open to some doubt (if it is open to
considerable doubt then such a right has not been established) a well
grounded
apprehension of irreparable harm if the interim relief is
not granted, that the balance of convenience is in such parties’
favour and that there is not other satisfactory remedy. I am
prepared to assume the latter three requisites are in favour
of the
respondents. An eviction with its consequent problems of
finding shelter would cause a well grounded apprehension
of
irreparable harm, the balance of convenience is in favour of the
respondents while damages is not a satisfactory remedy for
the
hardship and inconvenience. To my mind the primary question is
whether the respondents have established a
prima facie
right
though open to some doubt. As was held in the well-established
cases of
Webster v Mitchell
1948(1) SA 1186 W and
Gool
v Minister of Justice
1955(2) SA 682 C, this involves taking the
factors set out by the party seeking the interdict (the present
respondents) together
with any facts set out by the other side (the
applicant here) which cannot be disputed and considering whether,
having regard to
the inherent probabilities, such party should obtain
final relief at trial. In the present application that of
necessity
involves a consideration of the prospects of success by the
respondents in the application for rescission.
15.
Even
accepting that the present respondents have
locus
to bring the
rescission application, it is by no means clear that the non-hostel
dwellers were amongst the persons who consulted
with Mr Arndt.
If they were not then the fact that they have now authorised
representatives to appear for them in the rescission
application is
of no assistance because they would have no valid reason for having
failed to oppose the main application for eviction.
On a
reading of the founding affidavit in the rescission application, it
would appear that these non-hostel dwellers were not part
of the
persons who consulted with Mr Arndt. I say so because in
paragraph 4 of the founding affidavit for rescission, the
deponent
says:
“
When we first received notice of this
application [the eviction application], we respondents authorised a
committee to act on our
behalf in instructing attorneys to oppose the
application. For obvious reasons it would not be possible for
all 508 of us
to consult with attorneys for this purpose.”
16.
The
reference to “508” respondents is significant. As
appears from what I have set out these are the named respondents
in
the main application, being those persons who occupied flats
originally in terms of a lease with Iscor Limited. The persons
occupying Erf J6 or otherwise allegedly unlawfully occupying flats
were described in the eviction application as “further
unlawful
occupiers” and cited as the “509 and further
respondents”. On this ground alone, if I am correct
in my
assumption, the respondents whose names appears in manuscript annexed
to the power of attorney furnished in the replying
affidavit cannot
succeed. In the light however of the view I have formed,
they would, even if they were part of the
original respondents whose
committee consulted with Mr Arndt, not be successful in the main
application and accordingly cannot
succeed in the present
application. It is common cause that the persons occupying Erf
J6 never had any leases in their favour
and their defence appears to
be limited to a challenge as to whether the applicant has
locus
standi
to claim their eviction.
17.
Mr
Crampton relied on two bases - a rescission under the common
law and a rescission in terms of
Rule 42(1)(a)
on the ground that the
order was erroneously sought and erroneously granted. The
requirements for a rescission under
the common law are set out
Colyn
vs Tiger Food Industries Limited
t/a Meadow Feed Mills
(Cape)
2003 (6) SA 1
SCA – the party seeking relief on this
ground must establish good cause: in other words, he was not in
wilful default and
that he has a
bona fide
defence.
18.
As
far as the wilful default was concerned, this submission rested on
the breakdown of communication between those persons who consulted
with Mr Arndt and the view Mr Arndt had of his instructions.
While Mr Rall SC urged me to find that they could not have understood
Mr Arndt and that they were accordingly in wilful default (and in my
view there is much merit in this submission), it must be remembered
that the test for rescission on this aspect is a reasonable
explanation of the circumstances in which default judgment was
taken.
Accordingly, since Mr Arndt himself concedes that there
may have been a misunderstanding, I must find that the respondents
did
intend to oppose the eviction application and were not in wilful
default.
19.
With
regard to the defence raised, the identified respondents contended
that they were tenants whose leases had never been cancelled
nor
expired. There is however no allegation as to whether such
lease was in writing, or oral or a tacit month to month lease.
This lack of the relevant averments is significant as casting
considerable doubt on the veracity of the allegations regarding a
lease. Further, as pointed out by Mr.Rall SC, the deponents
have not set out any basis for having any knowledge of the lease
agreements of the other respondents.
20.
In
the affidavit filed on behalf of the eleven respondents previously
referred to in the main application, the respondents averred
that
they had been occupying the hostel for a considerable period of time
having entered into a rent agreement with Iscor Limited.
It was
common cause that Iscor Limited had donated the property to the
applicant who had “full responsibility” for
it. The
allegation is then made that the respondents as tenants were informed
(presumably by or on behalf of the applicant)
that it would be
“business as usual” and that the rental agreements would
continue. The respondents contend that the
applicant failed to see to
the upkeep of the property and the supplying of essential services
such as electricity and accordingly
the tenants “
decided
not to pay any further rent until such time as the service delivery
by applicant was up to standard”
.
According to the deponent to such affidavit:
“
Our rent agreements were never cancelled
and we had been advised that the hostel was going to be done up and
that the KZN Housing
Department was going to see to the development
of the hostel whereafter we would commence paying rent again”.
21.
No
indication is given as to who made this representation to the
respondents. The documents furnished in support of this
allegation do not take the matter anywhere.
22.
I am in
agreement with Mr Rall SC that the conduct of the respondents in
refusing to pay their rent was a material breach and amounted
to a
repudiation of whatever lease agreement was then in existence.
It is clear that where there is a repudiation, the party
relying on
the breach must show that an unequivocal notice of rescission was
conveyed to the other party (
Swart v Vosloo
1965(1) SA 100
A). As was held at page 105G “
a party to a contract
who exercises his right to cancel must convey his decision to the
mind of the other party; and cancellation
does not take place
until that happens”.
23.
Mr Rall
SC contended that the notices to vacate the property and the
launching of the application itself constituted unequivocal
notification by the applicant indicating that it had accepted that
the leases were at an end and as a result was seeking the eviction
of
all the respondents. The application papers in the main application
do indicate that a census was conducted in July 2008 of
the occupants
of the “Ingqayizivele Village” – a “census
form” was furnished which apart from identifying
the occupant
of each particular flat, also contained questions such as “Have
you been notified of the relocation to H39 by
the council?” and
“Have you received written notice to vacate the site?”.
The main application also
indicates that after a public meeting held
on 2 July 2008 notices to vacate (in English and isiZulu) were
distributed to each dwelling
on the hostel property. In the
circumstances, it must have been clear to all the occupants that for
whatever reason the applicant
regarded the leases as being at an end
and was seeking that the occupiers leave the property. In
my view, this conduct
constituted an unequivocal indication by the
applicant that it was exercising its right to cancel the leases.
Accordingly,
I do not believe that the defence that the lease were
still in existence would succeed at trial.
24.
The
respondents further disputed the applicants’ title to evict
them from the properties contending that the properties were
registered in the name of the Newcastle Municipality. This
defence can of course only apply to the persons who were not relying
on a lease because it is not open to a tenant to dispute the title of
a landlord (see
Cooper : Landlord and Tenant
pages 27 and 28
and footnote 70 and the cases cited therein). Accordingly those
respondents who contend they had any lease
cannot rely on this as a
possible defence.
25.
The
respondents annexed what were referred to as “Windeed
reports”. No allegations were made as to the reliability
of these reports but even accepting them at face value they indicate
that the applicant was the owner of various properties.
In
respect of Erf J6, the printout merely reflects “there are no
records available for the criteria specified”.
Mr
Crampton submitted from the Bar that his understanding was that this
means that the properties were
bona vacantia
or state property
and that such report meant that the applicant was not the owner.
Mr Rall SC disputed that any reliance
could be placed on the report
in respect of Erf J6 other than that no records were available.
I am in agreement with Mr Rall
SC. In the absence of a
certificate or affidavit from a conveyancer indicating that this is
the meaning of the relevant search
report, I cannot find that such
document indicates that the applicant is not the owner of the
property. There is therefore nothing
to gainsay the averment by the
applicant that it is the owner of the properties. In any event, it
was common cause that the applicant
had been given “full
responsibility” for the site and in my view this of necessity
must entail that it had sufficient
locus
to bring an
application for eviction of the occupiers who were not present in
terms of any lease.
26.
In my
view therefore, the respondents have not shown, even
prima facie
,
that they had a defence under common law to the claim by the
applicant for eviction and accordingly their prospects of succeeding
in the rescission on this basis are very much against them. For
that reason I cannot find that they have established a
prima facie
right to occupy the premises though open to some doubt – as I
have indicated there is considerable doubt that they have any
right
at all to occupy the premises.
27.
With
regard to the claim in terms of
Rule 42(1)(a)
, Mr Crampton submitted
that in its founding affidavit in the main application the applicant
had:
“
Created the impression that if an eviction
order was granted, the entity known as Southern Palace Investments
228 (Pty) Limited
would promptly erect 450 temporary shelters on the
property described in the papers as H39. These would provide
temporary
alternative accommodation for respondents evicted in terms
of an order granted in the application….”
28.
It
appears that an attempt was made in a supplementary affidavit deposed
to on 26 March 2009 by applicant’s representative
Eloma Celeste
Du Plessis to withdraw or at least water-down this undertaking.
That affidavit however was not served on the
respondents. The
depondent to the founding affidavit in the rescission application
stated : “
I respectfully submit that by filing the
supplementary affidavit and withdrawing or watering down the
undertaking, the applicant
was seeking an eviction order in
circumstances that rendered the eviction more drastic and draconian
that (sic) the circumstances
portrayed in the founding affidavit.
In such circumstances I respectfully submit that the order should not
have been granted
without affording the respondents a reasonable
opportunity to make representations having regard to what was alleged
in the supplementary
affidavit. In particular this affidavit
materially affected the position as far as concerns what would be a
“just and
equitable” date for the respondents to vacate
the property or be evicted.”
29.
Mr Rall
SC pointed out that since (other than the eleven named respondents)
all the respondents were in default, there was no obligation
on the
applicant to serve the supplementary affidavit on them. He
submitted that the court in granting the order of 1 April
2009 was
clearly alive to the position as to whether any temporary shelters or
other amenities were to be erected by the applicant
and took this
into account in granting an order for eviction but indicating that
such could only be given effect to after 8 April
2009.
30.
In my
view there is much substance to the submission. In the
affidavit filed on behalf of the eleven respondents in the main
application, the stance was not to make any issue out of the
undertakings by the applicant regarding the provision of temporary
shelters. On the contrary those allegations by the applicant
were dealt with simply by the deponent averring that he had
no
knowledge of the averments contained in the relevant paragraphs.
The respondents were accordingly not placing reliance
on those
“undertakings” and indicating that based on such
representations they were prepared to move. There was
no
submission in the alternative that in the event that a court did
grant an order for eviction, such should not operate until
all the
temporary shelters and any other amenities had been constructed.
31.
In my
view it cannot be said that the order of 1 April 2009 was in those
circumstances erroneously sought or granted. The
court which
heard the application had the supplementary affidavit before it and
took all the factors set out in that affidavit
and the other
affidavits filed before it reached the decision that it would grant
an order for eviction but allow the respondents
a week to vacate the
premises voluntarily. Accordingly I do not consider that the
respondents would succeed in rescinding
the judgment by relying on
Rule 42(1)(a).
32
.
It
is in the circumstances clear that I do not consider that the
respondents have a reasonable prospect of success in the application
for rescission. It cannot then be said that they have
established the requisites for interim relief pending the
determination
of the rescission application because they have not
shown any
prima
facie
right. Costs must in the premises follow the result. I
grant the following order :
1.
The
application for interim relief is dismissed.
2.
The
respondents are directed to pay the applicant’s costs of
opposition in the application for interim relief jointly and
severally, the one paying the others to be absolved.
_______________________
SKINNER,
AJ
ACTING
JUDGE OF THE HIGH COURT
KWAZULU-NATAL,
PIETERMARITBURG
Date
of hearing
:
21 April 2009
Date of
Judgment
:
24 April 2009
Counsel
for Applicant
:
Mr. A.J. Rall S.C.
Counsel
for Respondents
:
Mr. D. Crampton