City of Cape Town v Yawa and Others (395/04) [2004] ZAWCHC 5; [2004] 2 All SA 281 (C) (29 January 2004)

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[2004] ZAWCHC 5
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City of Cape Town v Yawa and Others (395/04) [2004] ZAWCHC 5; [2004] 2 All SA 281 (C) (29 January 2004)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE
NO: 395/04
In the matter between:
THE CITY OF CAPE TOWN
Applicant
and
STACEY YAWA AND OTHERS
First to Eighteenth Respondents
THE
OTHER OCCUPIERS UNKNOWN TO
APPLICANT
WHO UNLAWFULLY OCCUPY
ERF
18332, KHAYELITSHA, IN THE CITY OF
CAPE
TOWN, WESTERN CAPE Nineteenth Respondent
THE
PERSONS INTENDING TO UNLAWFULLY
OCCUPY
ERF 18332, KHAYELITSHA, IN
THE CITY OF CAPE TOWN, WESTERN
CAPE Twentieth Respondent
JUDGMENT DELIVERED ON 29
JANUARY 2004
BUDLENDER AJ:
In
this case the applicant seeks an order for the eviction of the first
to eighteenth respondents, who are identified by name, and
who are
alleged to be unlawfully occupying erf 18332, Khayelitsha, Cape Town.
The applicant seeks similar relief against the nineteenth
respondent, described as “The other occupiers unknown to applicant
who unlawfully occupy erf 18332, Khayelitsha”. The applicant
brings these proceedings, as it is obliged to do, under the
provisions of the Prevention of Illegal Eviction from and Unlawful
Occupation
of Land Act No. 19 of 1998 (the Act).
In
addition, the applicant seeks an interdict restraining the twentieth
respondent, described as “The Persons Intending to Unlawfully
Occupy Erf 18332, Khayelitsha” from erecting and/or occupying any
structure or makeshift dwelling for the purpose of unlawfully
occupying or residing on the erf.
The application originally came before
Dlodlo AJ
.
He made an order directing how notice under section 4 (2) of the Act
was to be given to the first to nineteenth respondents, and
for
certain related relief. In relation to the application against the
twentieth respondent, for reasons which are not relevant
here, he
referred this matter to me.
It
is therefore not necessary for me to consider the relief which the
applicant seeks against the first to nineteenth respondents.
The
only aspect before me is the application against the twentieth
respondent.
The
twentieth respondent is a group of unidentified people. The
applicant does not know and cannot say who they are or where they
are.
In
Kayamandi Town Committee
v Mkhwaso and others
1991 (2) SA 630
(C
), the
applicant sought an eviction order against nine named respondents and
other unnamed respondents, consisting altogether of some
150 people,
who were allegedly unlawfully occupying a piece of land.
Conradie
J
(as he then was) held
that one of the essential tests for determining whether a particular
act is to be classed as a judicial act
is whether there is a
lis
inter partes
(at 634 B).
He said that “a failure to identify defendants or respondents would
seem to be destructive of the notion that a Court’s
order operates
only
inter partes
…. An order against respondents not identified by name (or perhaps
by individualised description) in the process commencing action
or
(in very urgent cases, brought orally) on the record would have the
generalised effect typical of legislation. It would be a
decree and
not a Court order at all” (at 634 F-I).
That approach was endorsed by
Ngwenya
J
(Hlophe JP concurring) in
Illegal Occupiers of
Various Erven Philippi v Monwood Investment Trust Company (Pty) Ltd
(2002) 1 All SA 115
(C).
Ngwenya J
also stated at 121h that “The parties in legal proceedings must be
clearly identified. There are serious difficulties when the
applicant, as is the case here, does not have the requisite details
of the respondents. The respondents did not and do not have
the
particulars of the appellants. Regrettably, our rules of procedure
here do not assist us at all as to what to do when faced
with this
dilemma. Therefore, each case will have to be considered on its own
merits.”
Mr Arendse for the applicant referred
me to
Communicare v The
Persons Whose Identities are Unknown to the Applicant but who
unlawfully occupy the remainder
of the consolidated
farm Bardale no. 451, Division of
Stellenbosch
better known as
Fairdale
and others
(CPD case
no. 7970/03,
unreported).
In that matter
Rogers AJ
stated (at paragraph 9): “I do not believe that these cases should
be regarded as laying down an immutable rule that an application
directed at unnamed respondents is always permissible. It seems to
me that our procedural law would be sadly lacking if that were
the
case. What is an owner to do where his land is illegally occupied by
persons whose identities he cannot ascertain?”
Rogers
AJ
pointed out that in the
Kayamandi
case,
Conradie J
had held that the Prevention of Illegal Squatting Act 52 of 1951
provided an adequate alternative remedy. That Act has (thankfully)
been repealed, and that remedy is therefore no longer available. He
concluded that “the persons in occupation of land can be viewed
as
an ascertainable group, even though their names might not be known.
Through the process of service more information concerning
the
identities of the group may become known. In the ordinary course no
relief would be granted against unlawful occupiers under
s 4 of PIE
(the Act) until notice has been given by a method approved by the
court. When the eviction proceedings ultimately serve
before the
court, it will be necessary to assess the adequacy of the notice and
whether an effective order against sufficiently identified
parties
can be granted. Each case must depend on its own facts.”
Rogers AJ
proceeded to examine the facts in relation to each of the respondents
who had not been named or identified in the founding papers,
and made
orders in respect only of those who had subsequently been
sufficiently identified by reference to their names or where they
lived.
It seems to me that this approach is
consistent of that of
Ngwenya
J
in the
Monwood
case, where he held that “each case will have to be considered on
its merits”.
I therefore accept that the fact that
the individuals comprising the twentieth respondent have not been
identified is not of itself
an absolute bar to these proceedings.
However, it seems to me that there is
a much more fundamental problem with this aspect of the application.
The persons who comprise
or might comprise the twentieth respondent,
namely persons
intending
to unlawfully to occupy the erf, are not in any real sense an
ascertainable group. In this instance there is not an “identified
or identifiable group of persons who are properly before the court
and against whom an effective order can be made” (
Monwood
at para 15
). There is no
prospect that they will be identified during the course of the
proceedings, as happened in the
Communicare
case. The identity of the members of the twentieth respondent will
change from day to day. Some of those currently intending to
occupy
the land may decide not to do so. Some people, who today have no
intention to occupy the land, may subsequently decide to
do so.
The
problem is demonstrated by the form of service which is proposed in
the respect of the twentieth respondent. The applicant asks
for an
order that the Sheriff erect notice boards at such points along the
boundaries of the erf as he deems effective, and that
he affix a copy
of the application and the interim order to those notice boards.
Secondly, the applicant seeks an order that the
Sheriff read out the
contents of the interim order at such places on the erf and along the
boundaries of the erf as he deems will
be effective.
The second means of service can be
disposed of very quickly. If the Sheriff reads out the order today,
it will be of no purpose or
effect in respect of any person who is
not present when he reads out the order, and who intends to occupy
the land tomorrow or thereafter.
It will be effective only in
respect of any people who at the moment of announcement happen to be
in the process of occupying the
land, or visiting it. It will not
give any notice of the order to any other people intending to occupy
the land, and will be entirely
ineffective as far as they are
concerned. The first method of service will be of very dubious
efficacy. The documents on the notice
board will have to remain
there indefinitely if they are to have any effect at all. One can
readily imagine that the documents are
not likely to remain on those
notice boards for very long. Some will be removed, and some will be
blown off by the wind or the
rain.
The difficulties with service
illustrate the fundamental problem with the order which is sought.
It is already unlawful for persons
to occupy the erf in question
without the consent of owner. It is a criminal offence in terms of
the Trespass Act No 6 of 1959.
What the applicant is in substance
seeking, is an order on the world at large to obey the law in respect
of its property. To use
the formulation of
Conradie
J
in the
Kayamandi
case, that is a legislative
and not an administrative act. It is a decree and not a court order
at all.
I
have not been able to find, and counsel could not refer me to, any
judgment in which our courts have made and explained the basis
for a
general order of this kind, enjoining the public at large to obey the
law. Mr Arendse referred me to certain unopposed applications
in
this division, in which orders of this kind had been made. None of
them was opposed, and in none of them were reasons given for
the
order. There is therefore no basis for finding that this question
was ever raised before or by the court, or considered by the
court
before making its order. Those orders are therefore not of much
assistance.
Much more relevant is the judgment of
Rogers AJ
in the
Communicare
case, where a similar order had been sought.
Rogers
AJ
concluded that this mode
of seeking relief against an unidentified group of persons, namely
anybody who may in the future enter upon
the property for the purpose
of unlawfully occupying it, falls foul of the principles formulated
in the
Kayamandi
and
Monwood
cases. He found that an order of this sort would simply be a decree
to all and sundry forbidding them to take up occupation of the
land,
and that the granting of such relief simply does not represent a
judicial function. I respectfully agree.
Rogers
AJ
pointed out that if
somebody were later, after service of the order, to enter upon the
land, it is difficult to see how proceedings
for contempt could ever
be brought against such a person: “It would be impossible to point
to a court order binding that particular
person.” Again, I
respectfully agree.
I
put this problem to Mr Arendse, and asked him under those
circumstances, what the purpose of the order was. If it was already
a
criminal offence for anyone unlawfully to occupy the land, then
what would be gained by also making it contempt of court to do so?

He answered by pointing to a passage in the founding affidavit, where
the deponent on behalf of the applicant stated “the Applicant
does
not have the manpower nor is it sufficiently equipped to prevent the
unlawful invasion of the erf by a large of people. It
has to rely on
the South African Police Services who are hesitant to become involved
in the absence of an appropriate court order
authorizing them to do
so. Once such an order has been granted, it will enable the
Applicant, duly assisted by the South African
Police Services to
prevent any further invasion of the erf.”
The South African Police Services are
not a party to these proceedings. It is however self-evident that
the police services are under
a constitutional and statutory duty to
enforce the law: see section 205(3) of the Constitution and
section
13
of the
South African Police Service Act No 68 of 1995
. They do
not require an order of court authorizing them to do so, and neither
are they entitled to require an order of court before
they do so. I
recognize of course that there are resource constraints upon the
police, and that they have to determine priorities
as they carry out
their duties. They cannot be everywhere all the time. However, an
order of this court granting an interdict against
unnamed persons
does not assist the police in any way, and is not an appropriate
method for determining those priorities.
If
the South African Police Services fail to carry out their
constitutional and statutory duties, the Applicant’s remedy is to
seek
an order against them, rather than to seek an ineffectual order
against the world at large to obey the law in respect of its
property.
Finally, I should add that the order
sought is in any event tautologous. The twentieth respondent is
defined as those people intending
to occupy the land
unlawfully
.
By definition it is unlawful for them to occupy the land. The very
name of the respondents begs and answers the question whether
they
may occupy the land. I do not see the purpose in asking a court to
declare that people who by definition are described as acting
unlawfully, may not act unlawfully. If they are not acting
unlawfully, then they do not fall within the range of the respondents
at all. They do not even have to oppose the application. If they
are acting unlawfully then that is the end of the matter.
Not surprisingly, given that this
application was brought
ex
parte
and given the nature
of the relief sought, no one appeared on behalf of the twentieth
respondent to oppose the application. There
is therefore no need for
an order for costs in that respect.
The application for an interdict in
respect of the twentieth respondent, as set out in Part A of the
Notice of Motion, is accordingly
dismissed.
_______________________
G
M BUDLENDER