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2024
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[2024] ZAECMKHC 57
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Eastern Cape Development Corporation v Occupiers of Erf 117 and Erf 118 Umtata, Windsor Hotel, 36 Sutherland Street, Mthatha and Others (3333/2023) [2024] ZAECMKHC 57 (30 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 3333/2023
In
the matter between:
EASTERN
CAPE DEVELOPMENT CORPORATION
APPLICANT
and
OCCUPIERS
OF ERF 117 AND ERF 118
UMTATA,
WINDSOR HOTEL,
36
SUTHERLAND STREET, MTHATHA
FIRST
RESPONDENT
KING
SABATA DALINDYEBO
LOCAL
MUNICIPALITY
SECOND
RESPONDENT
THE
MINISTER OF POLICE
THIRD
RESPONDENT
REASONS
FOR ORDER
Rugunanan
J
[1]
This is an eviction application in which the
subject matter is a six storey building known as the Windsor Hotel
which is located
in the central business district of Mthatha.
[2]
It is alleged that a syndicate of unidentified
persons illegally gained control of the property and let it out to
the respondent
occupiers, and that the syndicate went as far as
forcing the lawful tenants of the applicant to pay their monthly
rental to them
or to vacate the property if they refused to do so.
[3]
The property is invaded and is no longer under the
control of the applicant.
[4]
The applicant asserts that it is the owner of the
property and that the first respondent occupiers are in unlawful
occupation.
[5]
The application primarily resorts in section 5 of
The Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19
of 1998 (the Eviction Act) in terms of which the
applicant, as owner, seeks urgent relief posited
inter
alia
on the presence of real and
imminent danger to person or property specifically the occupants of
the property and to other members
of the public.
[6]
Fundamentally, the applicant’s claim is
vindicatory.
[7]
On 30 November 2023, I made an order dismissing
the application and directed the applicant to pay the costs –
on the attorney
and client scale – of those respondent
occupiers who filed answering affidavits in opposition to the
application (of which
there were only two, amid concerns of delayed
service of the rule
nisi
herein and a considerable but indeterminate number
of occupiers who, due to geographical and economic constraints, could
not present
themselves or procure representation to oppose the
proceedings instituted in this Court).
[8]
At the hearing of the matter the parties (barring
the second and third respondents who made no appearance) fully
ventilated their
arguments on record and upon making the order I
stated that I was persuaded by the case presented in argument by
counsel for the
respondents.
[9]
To repeat the totality of the parties’
arguments at length would be a superfluous exercise since it is not
intended to descend
into a full-blown exposition thereof.
[10]
What
follows are my reasons, informed as they are by my view of the
substantial issue/s identified for determination and flowing
fairly
from the material before me. In sketching my reasons I intend
confining myself to saying only that which is considered absolutely
necessary to substantiate the order, this in deference to the caveat
that it does not necessarily follow that because something
has not
been mentioned it has not been considered
[1]
.
[11]
In its papers the applicant raised concerns about
the conduct and safety of several role players in the matter. While
maintaining
a measure of sensitivity by avoiding any mention of names
of individuals or entities in this judgment, I am however impelled to
state that the applicant’s concerns are a staggering
manifestation of hyperbole on an industrial scale. In expressing this
sentiment it is not intended to make light of the fact that an
executive official of the applicant was shot and sustained serious
injuries. However, there is no satisfactory proof that the incident
was an attempt to derail this application or that the police
are
investigating an offence.
[12]
Driving to the heart of the matter the flaw in the
applicant’s case lies both in its failure to properly establish
its alleged
ownership of the property and in its reliance on a letter
dated 13 July 2023 from the third respondent notifying of a report
that
the building is ‘seriously shaking’ as well as a
‘Drone Conditional Assessment’ dated 1 September 2023
(the drone survey). Though purporting to suggest that the building
structure and condition of the property presents a real and imminent
danger, the limitation presented by the letter and the drone survey
is the overall hearsay nature of the evidence which detracts
from
their reliability and credibility. The findings contained in the
drone assessment are provisional, and in the absence of information
about the technical specifications and capability of the drone, the
process through which its data was extracted and by whom, the
limitation in the applicant’s case becomes obvious particularly
where no confirmatory affidavit has been forthcoming from
its author
(ostensibly due to fear of reprisal).
[13]
The preceding reflections are the principal
aspects that influenced my decision to make the order which I did
once it became immediately
apparent that the case presented by the
applicant is founded essentially on hearsay matter in the expectation
that the Court would
be inclined to throw it a lifeline to regain
control and possession of property now in the hands of a syndicate.
[14]
The burning question is – how or why did
this happen? The material contained in the court file will enable the
interested
reader to draw their own conclusions.
[15]
In
vindicatory claims proof of ownership has to be adequate.
[2]
[16]
It
is settled that the best evidence for the proof of ownership of fixed
property is a title deed.
[3]
[17]
The applicant relied on a DeedsWEB report that was
issued on 12 September 2023. It has a disclaimer limiting the
validity of
the information it contains to a cycle of seven days. I
am unpersuaded that the information in the report survived the
disclaimer
by the time the matter was fully argued on 30 November
2023.
[18]
The report was introduced by the
applicant; it took the risk of doing so without forethought of the
implications of the disclaimer
and offered no explanation why it was
unable to obtain the title deed in the passage of several weeks since
instituting the proceedings
on 15 September 2023.
[19]
Tellingly,
the information reflected in the DeedsWEB report is hearsay. The
applicant has not put up an affidavit by the person
responsible for
compiling the information,
[4]
nor has a properly motivated case been put forward to motivate its
admissibility (as to which see below).
[20]
With these deficiencies the claim to ownership
loses legal traction and renders the application hopeless.
[21]
Turning to section 5 of the Eviction Act,
the court may grant an eviction order if it is satisfied that:
‘
(a)
there is a real and imminent danger
of substantial injury or damage to any person or property if the
unlawful occupier is not forthwith
evicted from the land;
(b)
the likely hardship to the owner or any other
affected person if an order for eviction is not granted, exceeds the
likely hardship
to the unlawful occupier against whom the order is
sought, if an order for eviction is granted; and
(c)
there is no other effective remedy available.’
[22]
The legislated jurisdictional factors are to be
read conjunctively and in the aggregate they place an onus on the
applicant.
[23]
The outcome of the matter turned on the primary
question whether the applicant has established a real and imminent
danger of substantial
injury or damage – as it were, that the
building is unstable, unsafe and in a state of deterioration.
[24]
I do not intend traversing the contents of the
letter nor of the drone survey (hereinafter for simplicity, the
documents), save
to state that the applicant has not adduced evidence
from any individual who has personal knowledge of the facts, events,
observations,
recommendations and/or the conclusions expressed
therein.
[25]
I
have no doubt that the deponent to the applicant’s founding
affidavit lacks personal knowledge of the contents of the documents
including the DeedsWEB report despite his assertion that he has
control of the documents and the facts to which he deposes are
within
his knowledge.
[5]
[26]
The upshot is that the material stands as hearsay.
[27]
Their probative value of depends upon the
credibility of the person/s who gathered information and compiled
them and not upon that
of the deponent to the founding affidavit.
[28]
Hearsay is, in the absence of agreement to receive
same, to be excluded unless its admission is sought in terms of
section 3(1)
of the Law of Evidence Amendment Act 45 of 1988 (the
Evidence Act).
[29]
Hearsay
evidence not so admitted in terms of the Evidence Act is no evidence
at all.
[6]
[30]
No case in terms of section 3(1) of the
Evidence Act was made out in the applicant’s papers and no such
case was advanced
in argument.
[31]
I acknowledge that hearsay evidence is more
readily admitted in urgent matters, but this does not mean that the
requirements of
the Evidence Act may be bypassed. It merely means
that a court, having regard to exigencies on the urgent roll, will
approach the
admission of hearsay with some degree of latitude, if in
appropriate circumstances, it is properly advanced and motivated.
Differently
put, a proper motivation must be set out in an affidavit
by the party relying on the hearsay matter having regard to the
requirements
in section 3(1) of the Evidence Act. But this is not the
only basis upon which the applicant’s reliance on the hearsay
evidence
fails.
[32]
Prior
to the enactment of the Evidence Act, it was incumbent on a party
relying on hearsay evidence to,
inter
alia
,
assert that the deponent believes the hearsay matter to be correct
and to furnish grounds for such belief.
[7]
There is nothing in section 3(1) of the Evidence Act to suggest that
this requirement is abandoned.
[8]
In point, section 3(1)
(c)
(vii)
of the Evidence Act enjoins the court to have regard to ‘any
other factor which in the opinion of the court should be
taken into
account’. A deponent who seeks to have hearsay evidence
admitted must, at least, in terms of this section state
that such
evidence is believed to be true and set out the grounds upon which
their belief is founded.
[9]
The
replying affidavit does not do so and the deponent’s assertion
of his belief in information furnished by others leaves
me
unpersuaded that the issue has been seriously and unambiguously
addressed, still less was any persuasive argument advanced.
[33]
The applicant’s preoccupation with
maintaining anonymity of identity, and in so doing by presenting
unconfirmed opinion evidence
does not in my view, justify the
eviction of the respondents much less in circumstances where the
second respondent does not have
a plan for providing emergency
shelter. Parenthetically, the temptation to comment on the affidavit
filed by the second respondent
on this particular issue, is resisted.
The need to do so does not arise but may yet emerge in another
context. In any event, by
the time of the hearing of the matter the
application had already lacked the requisite element or degree of
urgency. By then the
exercising of my discretion in the admission of
the hearsay evidence did not even come into consideration as no
proper motivation
for its admission was before me.
[34]
To grant the applicant relief on the basis of the
aforementioned documentation included amongst its papers would
be tantamount
to a mere rubber-stamping exercise and an uncritical
acceptance of evidence that has not been competently presented.
[35]
No substantiated or sustainable basis exists for
granting the eviction order,
caedit
quaestio.
S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicant:
G
J Gajjar
, Instructed by Joubert Galpin Searle Inc., c/o
Carinus Jagga Inc., Makhanda, Tel: 046-904 0086 (Ref: EAS68/0002).
For
the opposing Respondents:
D
Skoti
, Instructed by S R Mhlawuli & Associates c/o Yokwana
Attorneys, Makhanda, Tel: 046-622 3561 (Ref:
Mr Yokwana/Ms
Bulube
).
Date
heard:
30
November 2023
Reasons:
30
January 2024
[1]
R v
Dhlumayo and Another
1948 (2) 677 (A)
at 678.
[2]
Rusken
N O v Thiergen
1962
(3) SA 737
at 744A-B.
[3]
Goudini
Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1) SA 77
(A) at 81J-82A.
[4]
See
Dwele
v Phalatse and Others
[2017] ZAGPJHC
146 para 9 and the cases referred to therein.
[5]
Joni v
MEC Social Development, Eastern Cape
[2009] ZAECMHC 27
para 9.
[6]
S v
Ndhlovu
2002
(6) SA 305
(SCA) para 12.
[7]
Galp v
Tansley NO & Another
1966 (4) SA 555
(C) at 559G; also
Masazie
Logistics (Pty) Ltd v Fan
[2022] ZAGPJHC 98
para 12.
[8]
Masazie
Logistics
ibid
para 12.
[9]
Masazie
Logistics
ibid
para 12.