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[2004] ZAWCHC 51
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City of Cape Town v Yawa and Others (395/04) [2004] ZAWCHC 51 (29 January 2004)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 395/04
DATE:
29 JANUARY 2004
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 [1……], 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 [1……],
Khayelitsha, Cape Town. The applicant seeks similar relief
against the nineteenth respondent, described as “The other
occupiers unknown to applicant who unlawfully occupy erf [1……..],
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 [1…….], 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