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[2024] ZAECELLC 37
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Barker and Another v Nangu and Another (EL2049/2023) [2024] ZAECELLC 37 (9 July 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
Case
No: EL 2049 / 2023
In
the matter between:
DAVID
BARKER
First Applicant
NAVA
EMILIA
ANVARI
Second Applicant
and
VUYISWA
VERONICA NANGU
First Respondent
BUFFALO
CITY METROPOLITAN MUNICIPALITY
Second Respondent
JUDGMENT
BODLANI
AJ
[1]
Very few issues are as contested and
debated in the South African political landscape than land, land
dispossession, land repossession
and redress. That this is the case
in no surprise. The legacy of land dispossession is traceable from
the spatial inequality that
was perpetuated during and, sadly, in
post-apartheid South Africa. To understand why this position obtains,
one merely has to understand
South Africa’s apartheid colonial
and contemporary history.
[2]
Before me, it is sought
an
order authorising the eviction of a person from their home in
vindication of the right to property. The irony is that in many
a
case, as in here, the vindication by one of their rights to property
often entails the deprivation of another, of a place they
had
hitherto called their home. This too is partly rooted in
South
Africa’s apartheid colonial spatial planning
.
[3]
The applicants are
the registered owners of
e
rf
1
[…]
,
East London (“the property”). They purchased the property
at a public auction on or about November 2022. Thereafter,
it was
registered in their names on 09 February 2023. It is common cause
that the first respondent
(Ms.
Nangu)
, who is now 65
years old, occupies the residential house on the property together
with her major children, Mr. Bonke Nangu and
Ms. Sandisiwe Mhlanga.
The latter has two minor children who also reside on the property.
[4]
An owner or person in charge of land who wishes to evict another
person who resides on that land must comply with s 26(3) of
the
Constitution. That section requires that a court order first be
obtained. It also provides that legislation may not permit
arbitrary
evictions.
Essentially,
s 26(3)
of the
Constitution
carries a prohibition against unlawful evictions. This prohibition
was given effect to through the enactment of
the
Prevention of Illegal Eviction of Unlawful Occupiers of Land Act,
1998 (Act No. 19 of 1998) (‘the PIE Act’)
.
[5]
The PIE Act enjoins the courts to order an eviction only “if it
is of the opinion that it is just and equitable to do
so, after
considering all the relevant circumstances” as contemplated in
sections 4(6), (7),
[1]
and
6(1).
[2]
Thus,
the PIE Act serves to regulate evictions from ‘all land’
in the Republic. It does so by prescribing its application
only to
‘unlawful occupiers’ as defined and sets out both
procedural and substantive safeguards to avoid arbitrary
evictions.
Finally, it provides that the court dealing with an eviction must be
satisfied that the eviction is just and equitable.
[6]
In
considering whether it is “just and equitable” to make an
eviction order in terms of section 6 of the Pie Act, the
responsibilities that municipalities, unlike owners, bear in terms of
section 26 of the Constitution are relevant.
[3]
Indeed, municipalities have a major function to perform regarding the
fulfilment of the rights of all to have access to adequate
housing.
Municipalities, therefore, have a duty systematically to improve
access to housing for all within their area. They must
do so on the
understanding that often there are very complex socio-economic
problems that lie at the heart of unlawful occupation
of land in our
country.
[7]
It is not optional for municipalities to attend to their duties with
insight and a sense of humanity. Their duties extend beyond
the
development of housing schemes, to treating those who are landless
within their jurisdiction with utmost dignity and respect.
For all
this to be realized, there is a reciprocal duty upon who are landless
to avail themselves the services that their municipalities
offer. It
is through the delivery of services that a municipality’s
expression of dignity and respect to its community would
be
experienced.
[8]
In
deciding whether to grant an eviction order, a court has an
obligation to have regard to all relevant circumstances. Before it
can fully comply with such an obligation, it has to be apprised of
such circumstances and it therefore needs all of the relevant
information.
[4]
Both the
Constitutional Court and the Supreme Court of Appeal are of the view
that a municipality's obligations extend, at the
very least, to
providing a court with all of the information necessary to establish
when an eviction would be just and equitable.
[5]
To these I add, when municipalities undertake their obligations to
put together information necessary to establish when an eviction
would be just and equitable, persons sought to be evicted have a
corresponding obligation to enrich the process and thus, cooperate
with the municipality concerned.
[9]
A report by a municipality must not only be comprehensive but must
also be meaningful and specific, to assist the court to come
to a
just decision in a particular case. This would include information on
the interests of the rights and needs of the elderly,
children,
disabled persons and households headed by women,
[6]
if land may be made available, if there had been any mediation
(especially in relation to state-owned land)
,
[7]
and
if alternative accommodation is in fact available.
[8]
For a municipality’s report to be case specific, it follows
that persons sought to be evicted must fulfil their corresponding
obligation to enrich the process by placing their personal
information before the municipality concerned.
[10]
Notwithstanding service of the application upon it, Buffalo City
Metropolitan Municipality (“the City”) had initially
presented no report to this Court. This conduct falls to be
discouraged. It is not for a municipality, in any application for an
eviction order, to choose to or not to render a report.
Municipalities are under an obligation to do so. It is not in every
application
for eviction that a respondent would place their personal
and family circumstances before a court. Factually, in many eviction
cases, the respondent is an indigent person who does not afford the
services of a lawyer and does not have the tools that would
enable
them to put the court in a position properly to decide what would be
just
and equitable in their case
.
[11]
In opposition to the application, the first respondent (Ms. Nangu)
pleaded that it would neither be just nor equitable that
she, and her
children, be evicted from the property because they have nowhere else
to go. It is common cause that the applicants
purchased the property
at a public auction. The sale to the applicants was sequel to Ms.
Nangu’s inability to service the
credit agreement through which
she had financed the purchase of the property. As a result of her
inability to service the credit
agreement between her and the
financial institution that had financed her purchase of the property,
the latter instituted foreclosure
proceedings and repossessed the
property.
[12]
Notwithstanding, the brief history rehashed above, Ms. Nangu denies
that she and her family are unlawful occupiers. She contends
that to
be referred to as such is heartless, insulting and inconsiderate
given her and her family’s attachment to the property.
She also
asserts that she is not prepared to vacate the property without a
decent place in which to live. In its definition of
an unlawful
occupier, the PIE Act provides that:
‘‘‘
unlawful
occupier’’ means a person who occupies land without the
express or tacit consent of the owner or person in
charge, or without
any other right in law to occupy such land, excluding a person who is
an occupier in terms of the
Extension of Security of Tenure Act,
1997
, and excluding a person whose informal right to land, but for
the provisions of this Act, would be protected by the provisions of
the Interim Protection of Informal Land Rights Act, 1996 (Act No. 31
of 1996).’
[9]
[13]
Ms. Nangu’s papers do not place her and her family within the
exclusions contemplated in the definition of an unlawful
occupier.
Thus, by definition, Ms. Nangu’s suggestion that she and her
family are not unlawful occupiers of the property
is mistaken. They
are. Having determined that Ms. Nang und her family
are
unlawful occupiers of the property, I now turn to consider whether
Ms. Nangu and
her family have
a
valid defence to the applicants’ case.
[14]
Justice and equity obliges unlawful occupiers seriously and
meaningfully to, where there is a valid defence to the application
for eviction, place it before court. And, where there is no valid
defence, that they seek a solution to their plight, explore all
reasonable possibilities of securing suitable alternative
accommodation or land. This is more so after the institution of
eviction
proceedings, when it is known to them that the owner of the
property in issue is taking active steps to vindicate their rights of
ownership.
[15]
Other
than the mistaken assertion that they are not unlawful occupiers, Ms.
Nangu’s papers disclose no valid defence to the
application.
The
PIE Act does not define what constitutes a
“valid defence”. In
Occupiers
of Erven 87 and 88 Berea v De Wet N.O. and Another,
[10]
the Constitutional Court recognised that the notion of a “valid
defence” concerns s 4(8) and not section 4(6) or 7
of the PIE
Act. It said:
[64]
It
is apparent that the discussion of “valid defence” is in
reference to section 4(8)
[11]
and
not section 4(6) or (7). Furthermore, read in context, the
Supreme Court of Appeal does not exclude other possible
defences and
does not move away from the settled position that the court must come
to a decision that is just and equitable to
all parties to evict.
[16]
It seems to me, therefore, that a valid defence would be nothing less
of a right, in law, which entitles the holder to occupy
the property.
A frivolous,
mala
fide
and
untenable something which is not supported by the facts; falls short
of recognition in law; and therefore, does not
entitle
the occupier to remain in occupation as against the owner of the
property
cannot
amount to a valid defence. It is on this basis that I conclude that
the version proffered by Ms. Nangu does not establish
a valid defence
to the application for eviction.
[17]
Also, other than an approach to a relative for temporary
accommodation, which was unsuccessful, there is no indication in her
papers that
Ms.
Nangu
made
any other attempts at getting an alternative place of residence. It
bears mentioning that the assertion by Ms. Nangu that she
and her
family are not unlawful occupiers of the property and her pleaded
attempt at securing alternative accommodation are difficult
to
reconcile. It seems to me that the attempt at securing alternative
accommodation was made in recognition of the unlawfulness
of the
Nangu family’s occupation of the property.
[18]
I have already
stated that
the PIE Act requires
the courts to hold the balance between illegal eviction and unlawful
occupation and to ensure that justice
and equity prevail in relation
to all concerned.
Thus,
those seeking eviction should be encouraged not to expect the courts
to treat those sought to be evicted as obnoxious social
nuisances.
Such a stereotypical approach has no place in the society envisaged
by the Constitution. Similarly, those sought to
be evicted should be
encouraged to place before court all the information at their
disposal, which would assist the court ensure
that
justice and equity prevails.
[19]
The
nature of the enquiry under section 4 of the PIE Act was examined in
City
of Johannesburg v Changing Tides 74 (Pty) Ltd.
[12]
There, it was held that there are two separate enquires that must be
undertaken by a court:
“
First,
it must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors. Under
section 4(7)
those factors include the availability of alternative land or
accommodation. The weight to be attached to that
factor must be
assessed in the light of the property owner's protected rights under
section 25 of the Constitution, and on the
footing that a limitation
of those rights in favour of the occupiers will ordinarily be limited
in duration. Once the court
decides that there is no defence to
the claim for eviction and that it would be just and equitable to
grant an eviction order,
it is obliged to grant that order.”
[13]
[20]
The second enquiry, which the court must undertake before granting an
eviction order, is to consider—
“
what
justice and equity demand in relation to the date of implementation
of that order and it must consider what conditions must
be attached
to that order. In that second enquiry it must consider the
impact of an eviction order on the occupiers and whether
they may be
rendered homeless thereby or need emergency assistance to relocate
elsewhere. The order that it grants as a result
of these two
discrete enquiries is a single order. Accordingly, it cannot be
granted until both enquiries have been undertaken
and the conclusion
reached that the grant of an eviction order, effective from a
specified date, is just and equitable. Nor
can the enquiry be
concluded until the court is satisfied that it is in possession of
all the information necessary to make both
findings based on justice
and equity.”
[14]
[21]
Before undertaking the enquiries referred to above, which I undertake
later in this judgment, and mindful that if granted,
an eviction
order might yield Ms. Nangu’s family’s homelessness, I
issued a directive in the following terms:
“…
..FOLLOWING
UPON the hearing of this application on 13 June 2024, the following
directive, which must urgently be adhered to issues:
I.
The first respondent is directed, as undertaken by counsel during
argument on 13 June 2024, to file her heads of argument on
or before
close of business on 14 June 2024. Together with her heads of
argument, the first respondent is required to make available
her bank
statement for the past 6 (six) months up to 14 June 2024. This will
assist the Court evaluate her financial position.
II.
The applicant, on or before the close of business on 18 June 2024, is
directed:
a).
if so advised, to file a response to the first respondent’s
heads of argument on or before close of business on 18 June
2024; and
b).
to, on affidavit, provide full details regarding payment for all
municipal services on the property. The information must include
what
was owing at the time of the transfer of the property to the
applicant, who paid it, who has been paying for municipal services
since the transfer of the property to date and how much has, in total
been paid to date.
III.
The second respondent is directed to file a report, in writing, on or
before Friday, 21 June 2025
[15]
– dealing with the following issues:
a).
its ability and readiness to
provide
temporary
emergency accommodation to the first respondent and her family should
the court issue an eviction order against them;
b).
if the second respondent is in a position
to
and/or does provide
temporary
emergency accommodation following upon the grant of an eviction
order, how the first respondent and her family can access
such
temporary emergency accommodation and by when;
c).
whether the first respondent qualifies for state subsidised
accommodation in terms of the means test administered by the
Department
of Human Settlements;
d).
what assistance, in general terms, does it render to persons who have
been evicted from what had hitherto been their homes,
on account of
foreclosure proceedings;
e).
whatever is the answer to the enquiry in d) what is the kind of
assistance, if any, can it render to the first respondent should
the
court issue an eviction order and by when; and
f).
whether since the institution of the eviction application, the first
respondent ever approached the second respondent and applied
for
assistance in connection with the application for her eviction and
that of her family, and if so:
f.1
what was the nature of the first respondent’s application; and
f.2
what was the outcome of that application.
IV.
So as to facilitate giving effect to paragraph c) of this directive,
the first respondent, through her attorneys, shall make
herself
available to second respondent’s attorneys on or before
Wednesday, 18 June 2024, for the second respondent’s
attorneys
to have the first respondent meet with the relevant personnel in the
second respondent’s establishment for the
execution of the
purpose for which paragraph c) of this directive is designed.
V.
Notwithstanding its delivery by the Registrar of this court, the
applicants’ attorney of record shall be responsible for
the
service of this directive upon the respondents’ attorneys and
filing in court.”
[22]
This directive attracted no response from Ms. Nangu. Similarly, the
City did not heed it. The attorneys for Ms. Nangu filed
an affidavit
in terms of which they explained that they had brought the directive
to her attention. Despite this, they had obtained
no instructions on
anyone of the questions raised in the directive. The applicants filed
their response. The response showed that
there is a substantial
amount of money that is owing to the City for the services it has
rendered on the property
.
It also showed that the applicants had singularly been responsible
for whatever payments had previously been made to the City
for
services rendered by
it on the property
.
[23]
Mindful that there is a tenant in the property, an issue I return to
in paragraphs 30 and 31 below, so that if granted the
reach of the
eviction order would go beyond the Nangu family, I issued another
directive in the following terms:
“…
FOLLOWING
UPON the hearing of the application on 13 June 2024, the court issued
a directive (“the first directive”).
This is a second
directive, issued following upon receipt of an explanatory affidavit
filed to explain the first respondent’s
noncompliance with the
first directive. Like the first, this directive must be urgently
adhered to:
THE
MANNER OF SERVICE OF THIS DIRECTICE
I.
The applicant’s attorneys are directed to serve this directive
to all the parties’ legal representatives and, with
the use of
the Sheriff upon the occupants of the property at […] B[…]
Street, Amalinda, East London,
on
e
rf
1
[…]
,
East London (“the property”)
.
Similarly, the first respondent’s attorneys are directed to
serve this directive upon the first respondent by whatever means
available at their disposal including by transiting it directly to
her through the social media platform known as WhatsApp.
II.
Should, at the time of service, the Sheriff find no one in the
property willing to accept service or, no one at all, the Sheriff
is
authorised after satisfying himself that there is no one who is
willing to accept service, to affix this directive in 3 (three)
most
prominent features of the property including but not limited to the
main door, the main gate and/or the perimeter wall using
an adhesive
tape and if the method of service has been to affix, to take photos
of this directive after affixing; and to thereafter
render a return
of service which explains fully how service was effected.
THE
SUBSTANCE OF THE DIRECTIVE
I.
The first respondent is given another opportunity and is required to
make available her bank statement for the past 6 (six) months
up to
18 June 2024. This will assist the court evaluate her financial
position. This must be done and adhered to on or before 2
July 2024.
II.
Mr.
Bonke Nangu,
Ms.
Sandisiwe
Mhlanga
and any other
occupant of the property whether they derive, or not, their
occupation of the property from the first respondent
are required, if
they so wish, to advise the court, on affidavit which may be sworn to
before a police officer in a police station,
of their personal
circumstances should an eviction order issue. This must be done and
adhered to on or before 2 July 2024.
III.
The second respondent is directed to place before this court a full
report on what urgent services and assistance it provides
to people
who find themselves homeless by reason of having been evicted from
land and/or properties by means of a court order.
As
part of this report, it must be included the name(s) and contact
detail(s) of a person or persons who responsibility it is in
the
second respondent’s establishment to attend to matters such as
dealt with in this paragraph.
This
must be done and adhered to on or before 2 July 2024.
IV.
The parties and/or persons referred to in II above are required
,
if they so wish, to attend to the second respondent’s attorneys
on 28 June 2024. The second respondent’s attorneys
are directed
to facilitate contact between the
parties
and/or persons referred to in II above
with the officials of the second respondent whose responsibility it
is to attend to matters such as dealt with in items III and
IV of
this directive.
V.
The second respondent’s attorneys are directed to report to
this court, on affidavit, on or before 16h00 on 2 July 2024:
a).
whether there has been compliance
with the matter dealt with in items III and IV of this directive; and
b).
the reasons for the failure to
comply with the first directive, and why no one is liable to be held
in contempt of court for that
failure.”
[24]
For I did not know who else lives in the property, other than the
Nangu Family and the tenant, and what their standard of education
is,
I also issued the second directive in IsiXhosa, and in the following
terms:
“…
EMVENI
KOKUBA kuxoxwe ityala ngomhla we 13 Juni 2024, iNkundla yakhupha
umyalelo (“umyalelo wokuqala”). Lo ngumyalelo
wesibini
okhutshwa emveni kokuba amaGqwwetha oMmangalelwa wokuqala efake
ubungqina obufungelweyo buxela ukuba kutheni na uMmangalelwa
wequkala
engakhange awuthobele umyalelo wokuqala. Njengomyalelo wokuqala,
lomyalelo mawuthotyelwe ngokukhawuleza:
INDLELA
YOKUTHUMELA LO MYALELO
I.
Amagqwetha abaMangali mawawugqithise lomyalelo kuwo onke amagqwetha
abandakanyekayo kulembambano iphambi kweNkundla. Ayakuphinda
kananjalo awuthumele lomyalelo ngeSithunywa seNkundla esiyakuthi sona
siwuse phaya enamba [...] B[...] iSitrato, Amalinda, East
London,
kwiSitandi esingu namba
1[...],
East London
(“eMzini”)
.
Amagqwetha oMmangalelwa wokuqala ayalelwa ububa awuthumele lomyalelo
kuMmangalelwa wokuqala ngandlela zonke anokwenza ngazo de
asebenzise
nelikhasi libizwa ngokuba ngu
WhatsApp
,
nanjengoko ebenzile xa ebethumela uMyalelo wokuqala.
II.
Ukuba iSithunywa seNkundla asifumani bani owamkelayo lomyalelo
ngexesha lokuwuthumela phaya eMzini, siyagunyaziswa ukuba sisakube
siqinisekisile ukuba akukho bani uwamkelayo umyalelo lo okanye
unokuwamkela, siwuncamathisele kwezona ndawo zibonakala zisekuhleni
eziyi 3 (ezintathu) khona phaya eMzini. ISithunywa seNkundla
siyagunyaziswa ukuba lomyalelo singawuncamathelisa esangweni,
kulomnyango
kungenwa ngawo ungaphambili endlwini, ukanti ke nakubiyo
olu lubonisa umda weSitandi. Ukuba iSithunywa seNkundla
siwuncamathelisile
loMyalelo, siyakuwufota ze iFoto leyo
incamatheliswe kwinkcaza ezeleyo echaza ukuba uthunyelwe njani na.
Siyakuthi ke sisakuba
siwuthumele lomyalelo iSithunywa seNkundla,
senze inkcaza ezeleyo sichaza ukuba siwuthumele njani na umyalelo lo.
NGOWANTONI
UMYALELO
I.
UMmangalelwa wokuqala unikwa elinye ithuba lokuba abeke phambi
kweNkundla uxwebhu lwengcaciso esuka kuvimba wakhe wokugcina imali,
iBhanki, onika ingxelo ngubume bemali yakhe kwiiNyanga eziyi 6
(ezintandathu) ezandulela umhla ka 18 Juni 2024. Oluxwebhu
lwengcaciso
luzakunceda iNkundla ijonge ubume bakhe ngokwasezimalini.
Oku makwenziwe phami komhla ka 2 Julayi 2024.
II.
UMhlekazi
Bonke
Nangu, NeNkosazana Sandisiwe Mhlanga
naye namphi na omnye umntu ohlala phaya eMzini nokuba uhlala okanye
akahlali ngokwemvume ayifumene kuMMangalelwa wokuqala, banikwa
ixesha, ukuba bayalifuna, lokubeka phambi kweNkundla inkcukacha
ngobume babo, noko kunokwenzeka kubo xa iNkundla inokukhupha umyalelo
wokuba mabakhutshwe phaya eMzini. Ingxelo le, xa befuna, banokuyibeka
phambi kweNkundla ngokuyifungela. Bangaya nakwisikhululo
samaPolisa
esikufuthsane kubo ukuze bancedakale ngokufungiswa. Oku makwenziwe
phami komhla ka 2 Julayi 2024.
III.
Ummangalelwa wesibini, uyayalelwa kwakhona, ukuba abeke ingxelo
ezeleyo phambi kweNkundla malunga noko anokukwenza, uncedo
olungxamisekileyo olufanele nalunika umntu ophulukene nendawo
yokuhlala ngenxa yesindululo seNkundla, inkcukacha ngoncedo olo,
igama lomntu ekuthethwa naye xa kufunwa uncedo olo, kunye nenkcukacha
yokunxibelelana nomntu lowo. Oku makwenziwe phami komhla
ka 2 Julayi
2024.
IV.
Abo kubhekiselwe kubo apha kumhlathi we II ngasentla, bayalelwa ukuba
badibane namagqwetha kaMmangalelwa wesibini ngomhla we
28 Juni 2024
ukwenzela ukuba abadibanise nabo basebenzela uMmangalelwa wesibini
ekungumsebenzi wabo ukujongana nemeko yabantu abafanelwe
luncedo
malunga noku kuthethwa ngako kumhlathi we III no IV waloMyalelo.
V.
Amagqwetha oMmangalelwa wesibini ayalelwa ukuba afake ingcaciso
efungelweyo kuleNkundlwa ngo 16h00 ngomhla we 2 Julayi 2024 exela:
a).
ukuba kwenzeke ntoni na ukuthobela umyalelo waleNkundla malunga
nokukuthethwa kumanqaku
III no IV
walomyalelo; and
b).
izizathu
zokungathotyelwa
komyalelo wokuqala nokuba kutheni na kungekho bani ufanelwe
kukufumaniswa enetyala lokungathobeli Nkundla ngokungathobeli
umyalelo wokuqala.”
[25]
Shortly after the issue of the second directive, service thereof was
effected by the sheriff upon one, Sandisiwe. Not only
that, counsel
for Ms. Nangu,
Mr. Madukuda,
took the unusual step of deposing
to an explanatory affidavit in terms of which he explained the steps
he took to bring the isiXhosa
and English versions of the second
directive to the attention of Ms. Nangu. Attached to his explanatory
affidavit were screenshots
of text and WhatsApp messages that he sent
to Ms. Nangu. He also testified that he had sent voice notes to Ms.
Nangu explaining
the importance of compliance therewith. Lastly, he
identified two close relatives of Ms. Nangu’s that he spoke to
with the
view to have them convey to Ms. Nangu the importance of
adhering to the directives. However, none of these attempts propelled
Ms.
Nangu, her children and anyone else who resides in the property
whatever it is that their occupation derives from (“the
occupants”)
into action. Most importantly,
Mr. Madukuda
indicated his firm belief and view that Ms. Nangu was aware of the
second directive.
[26]
In response to the second directive, the City filed a report stating
what services it offers to persons who have been evicted
from their
former homes. The report also explained the process to be followed
when applying for emergency housing or other form
of assistance where
it is required. It made it clear that there has to be an application
made by the person in need of assistance.
Once made, the application
would be processed like any other. Coupled with the report,
explanatory affidavits were filed regarding
the failure by the City
to heed the terms of the first directive. I accept the explanation.
It was also explained that Ms. Nangu
had not, despite being directed
to do so if she and her family required assistance, approached the
City’s attorneys for them
to assist her meet the officials of
the City whose duty it is to assist persons who have been evicted
from their former homes.
[27]
There is meaning to be attached to the failure by the occupants to
avail themselves to the attorneys of City so that a meeting
between
them and the officials of the City concerned in assisting the
homeless and in need of emergency accommodation. It is a
failure by
them to assist the City put together a case specific report that
would have taken into account their personal and special
circumstances, if any. It is also a failure by them, unfortunately,
to
place before this Court more information which would have further
enriched the process of this Court in its determination of
what
justice and equity requires in
these circumstances.
[28]
This is not to say that this Court is not in possession of
information
for use in its determination of what
justice
and equity requires in these circumstances. The failures referred to
above form part of the information that is before this
Court, which
it is duty bound to consider. The failures also mean that the City
was deprived of its opportunity to determine, regard
being had to the
Nangu household income – and the income of any other family
that resides in the property albeit independently
of the Nugu Family
– entitlement to emergency temporary or other form of housing
and relief.
[29]
Turning now to the first enquiry to be made in accordance with the
decision in
Changing Tides
,
I recognise that Ms. Nangu and her family became unlawful occupiers
of the property on 09 February 2023 when she lost ownership
thereof
in a sale in execution. The application for their eviction was
instituted on 30 June 2023, before the lapse of 6 (six)
months since
the applicants’ ownership of the property.
I
have also considered that since taking ownership of the property, the
applicants did not derive any benefit from their right of
ownership.
Ms. Nangu and her family have not
been paying rent nor have they been paying for the municipal services
that the City renders on
the property.
[30]
It is common cause that as part of facilitating the transfer of the
property to them, the applicants paid a sum of R90 000.00
(ninety thousand rand) to the City for services it had rendered on
the property during the currency of Ms. Nangu’s ownership.
A
return of service for the service of the bundle of the application
papers upon Ms. Nangu shows that service was effected upon
a tenant.
The bundle of the application papers was served upon Ms. Nangu to
obviate an application for the postponement of the
hearing after her
attorney’s abortive attempt at withdrawing as her attorney of
record from the matter. The tenant cannot
be the applicants’
tenant. The applicants have had neither possession nor access to the
property since taking ownership thereof.
At best, it would be Ms.
Nangu’s tenant.
[31]
Whilst I do not decide the issue whether the tenant in question is
Ms. Nangu’s, I mention in passing that it would be
unconscionable for her to have a tenant(s) in someone’s
property, whilst resisting, without a valid defence, an application
for her eviction therefrom. Having found that Ms. Nangu’s
papers do not establish a valid defence to the application for
eviction and having considered the aspects of the first leg of the
enquiry, I find
that it would be just and equitable to grant an eviction order in
these circumstances.
[16]
[32]
That the occupants decided not to avail themselves the opportunity to
meet the City’s lawyers so that
a
meeting between them and officials of the City concerned in assisting
the homeless and in need of emergency accommodation
could
be arranged is not the end. It is, in fact, the beginning. It is
available to the court, if need be, to draw inferences from
that
conduct. In any event, the trigger to being assisted by the officials
of the City is not one’s introduction to them
by lawyers. The
trigger is the need for
emergency
or, alternative accommodation,
and
or one or the other form of service.
[33]
Accordingly, with or without the assistance of the City’s
lawyers, nothing prevents the occupants from approaching the
City for
any form of assistance in the future, if they so decide. In
accordance with the process indicated in the City’s
report,
filed in response to the second directive, I am satisfied that the
kind of assistance they might require awaits them. If
not, there are
remedies in law. I need therefore to
consider
what justice and equity demands in relation to the date of
implementation of the eviction order. I need also, to consider
what
conditions, if any, must be attached thereto.
[34]
I now turn to the second leg of the inquiry envisaged in
Changing
Tides
.
During argument,
Mr.
Madukuda
,
was at pains repeatedly to point out that an eviction order in this
case would lead to homelessness.
This
Court should be concerned with the issue regarding the availability
of alternative accommodation,
argued
Mr.
Madukuda
.
In
contrast,
Mr.
Kotze
urged me to deal with the application on the basis that its premised
on s 4(6) of the PIE Act. Thus, I should not be concerned
with the
issues regarding the availability of alternative accommodation, he
submitted. I disagree. Where, as in here, there is
a risk that
homelessness may result, the availability of alternative
accommodation becomes a relevant circumstance that must be
taken into
account. This is regardless of whether the application is in terms of
s 4(6) or (7) of the PIE Act.
[17]
[35]
What triggers the need for a court to consider the availability of
alternative accommodation in its enquiry is the risk that
homelessness may result from the grant of the eviction order. A court
will not be able to determine the justice and equity requirements
of
an eviction order without hearing from the local authority upon which
a duty to provide temporary emergency accommodation may
rest. This,
primarily, is what informed the issue of the post hearing directives
as part of this Court’s role in active judicial
management of
an eviction application.
In
Various
Occupiers
,
[18]
the Constitutional Court emphasised the new approach that courts must
adopt in eviction matters. It said:
“
The
court is thus called upon to go beyond its normal functions and to
engage in active judicial management according to equitable
principles of an ongoing, stressful and law-governed social process.
This has major implications for the manner in which it must
deal with
the issues before it, how it should approach questions of evidence,
the procedures it may adopt, the way in which it
exercises its powers
and the orders it might make. The Constitution and PIE require that,
in addition to considering the lawfulness
of the occupation the court
must have regard to the interests and circumstances of the occupier
and pay due regard to broader considerations
of fairness and other
constitutional values, so as to produce a just and equitable result.”
[36]
Unfortunately, the intransigence of the occupiers, thwarted any
product that may have arisen out of this Court’s attempt
at
active judicial management. Be that as it may, to the extent that
there was a dispute between the parties about the need for
a report
from the City and/or its role, I find that the City was not only a
necessary party to the proceedings, it was duty bound
to place, as it
did, a report before this Court for its assessment of what is just
and equitable, what services it renders to persons
in need emergency
and/or alternative accommodation. In determining the date on which
the eviction order should be implemented,
I have considered the
material in paragraphs [3], [8], [11] to [28], and [30] to [33], and
[36] of this judgment, balanced against
the interests of the
applicants who have no responsibility to provide accommodation for
the occupants.
[37]
I have also considered that since taking ownership of the property,
the applicants did not derive any benefit from their right
of
ownership. If anything, they have had to incur expenses that are due
to the City for the services it has rendered on the property
since
February 2023. Accordingly, I find that the eviction order should be
carried out after a period of 15 (fifteen) days from
the date of this
judgment, should the occupants not vacate the property on their own,
would be just and equitable.
Accordingly,
the following order shall issue:
1.
It is declared that the first
respondent, Ms. Vuyiswa Veronica Nangu, her family and all persons
who, through her and/or who through
whatever other means, occupy the
property known as e
rf
1
[…]
,
East London, situated at No.
[…]
B
[…]
Street, Amalinda,
East London are unlawful occupiers of that property (“the
unlawful occupiers”).
2.
It is declared that it is just
and equitable that the
unlawful
occupiers b
e evicted from e
rf
1
[…]
,
East London, situated at No.
[…]
B
[…]
Street, Amalinda,
East London and that such eviction be carried out on a date after 30
July 2024.
3.
In the event of the unlawful occupiers failing to vacate the property
and remaining in occupation thereof after 30 July 2024,
t
he
sheriff of this court, duly assisted by the Members of the South
African Police Service if need be, is authorised to carry the
terms
of paragraph 2 of this order.
4.
The first respondent shall pay the costs of this application on a
party and party scale, such costs to be on scale B referred
to in
Uniform Rule 67A.
A
M BODLANI
ACTING
JUDGE OF THE HIGH COURT,
EASTERN
CAPE DIVISION.
For
the Applicant
:
MESSRS BAX KAPLAN RUSSELL INC
Intrusted
by
:
MESSRS BAX KAPLAN RUSSELL INC
Attorneys
for the Applicants
No.
34 Pearce Street
Berea
EAST
LONDON
Tel:
(043) 706 8400
Email:
bradleyp@bkr-inc.co.za
Ref:
B PRINSLOO/MAT63382
For
the 1
st
Respondent
:
Mr. MADUKUDA
Intrusted
by
:
MESSRS S. MJALISWA ATTORNEYS
Attorneys
for the First Respondent
Office
40, 4
th
Floor
Old
CAN Building Union Street
EAST
LONDON
Tel:
073 453 6623
Email:
s.mjaliswainc2@gmail.com
Ref:
VVN01/07/2023
For
the 2
nd
Respondent
:
No Appearance during argument
Heard
on
:
13 June 2024
Delivered
on
:
09 July 2024
[1]
These sub-sections provide that:
“
(6)
If an unlawful occupier has occupied the land in question for less
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering all
the
relevant circumstances, including the rights and needs of the
elderly, children, disabled persons and households headed by
women.
(7)
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering all
the
relevant circumstances, including, except where the land is sold in
a sale of execution pursuant to a mortgage, whether land
has been
made available or can reasonably be made available by a municipality
or other organ of state or another land owner for
the relocation of
the unlawful occupier, and including the rights and needs of the
elderly, children, disabled persons and households
headed by women.”
[2]
This sub-section provides:
“
(1)
An organ of state may institute proceedings for the eviction of an
unlawful occupier from land which falls within its area
of
jurisdiction, except where the unlawful occupier is a mortgagor and
the land in question is sold in a sale of execution pursuant
to a
mortgage, and the court may grant such an order if it is just and
equitable to do so, after considering all the relevant
circumstances, and if—
(a)
the consent of that organ of state is required for the erection of a
building or structure on that land or for the occupation
of the
land, and the unlawful occupier is occupying a building or structure
on that land without such consent having been obtained;
or
(b)
it is in the public interest to grant such an order.”
[3]
Port
Elizabeth Municipality
v
Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
CC at para 56 (
Various
Occupiers
).
[4]
ABSA
Bank v Murray
2004
2 SA 15
(C) para 41 (
ABSA
Bank
);
Blue
Moonlight Properties
para
52;
Various
Occupiers,
para
32;
Sailing
Queen Investments v The Occupants of LA Collee n Court
2008
6 BCLR 666
(W) (
Sailing
Queen Investments
);
Ritama
Investments v The Unlawful Occupiers of Erf 62, Wynberg
2007
JOL 18960
(T) para 13 (
Ritama
Investments
).
[5]
Sailing
Queen Investments
para
11 referring to
Various
Occupiers
and
Modder
East Squatters v Modderklip Boerdery (Pty) Ltd; President of the
Republic of South Africa v Modderklip Boerdery (Pty) Ltd
2004
8 BCLR 821
(SCA) (
Modderklip
Boerdery
);
Occupiers
Shulana Court
,
11 Hendon Road, Yeoville, Johannesburg v Mark Lewis Steele
2010
9 BCLR 911
(SCA) para 10 (
Occupiers
Shulana
);
Wilson 2009
SALJ
285-286.
However, according to
Drakenstein
Municipality v Hendricks
2010
(3) SA 248
(WCC) para 29 there does not seem to be a general
duty on municipalities to report in all cases.
[6]
Occupiers
Shulana,
above,
n 5, para 11.
[7]
Various
Occupiers,
above,
n 3, paras 39 – 45.
[8]
Ritama
Investments,
above,
n 4, para 13;
Sailing
Queen Investments,
above,
n 5, para 6;
ABSA
Bank,
above,
n 4, paras 41 – 42.
[9]
Section
1 of the PIE Act.
[10]
(CCT108/16)
[2017] ZACC 18
;
2017 (8) BCLR 1015
(CC);
2017 (5) SA 346
(CC) (8 June 2017) (
Occupiers
of Erven 87 and 88
).
[11]
The sub-section reads as follows:
“
If
the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of
the unlawful occupier, and determine –
(a)
a just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
(b)
the date on which an eviction order may be carried out if the
unlawful occupier has not vacated the land on the date contemplated
in paragraph (a).”
[12]
[
2012]
ZASCA 116
;
2012 (6) SA 294
(SCA);
2012 (11) BCLR 1206
(SCA)
(
Changing
Tides
)
at paras 11 – 25.
[13]
Changing
Tides
,
above n 12, para 25.
[14]
Changing
Tides
,
above n 12, para 25.
[15]
So
soon as I noticed reference to 2025 in paragraph III of the
directive, I brought it to the attention of the parties’
legal
representatives that reference was, in fact, to 2024.
[16]
Changing
Tides,
above,
n 12,
para
25.
[17]
See
Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd
[2009] ZASCA 80
;
2010 (4) BCLR 354
(SCA) (
Shorts
Retreat
)
at paras 11-4; Shulana Court above n 5 at paras 13-6; and
Changing
Tides
,
above
n 12,
at
para 38.
[18]
Various
Occupiers
,
above n 3, para 36.