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
WESTERN CAPE DIVISION, CAPE TOWN
CASE NUMBER: 20009/2017
In the matter between:
CITY MISSION TRADING AS CAPE TOWN MISSION PLAINTIFF
AND
CITY MISSION EDUCATION SERVICES TRADING AS FIRST DEFENDANT
CMES
MEMBER OF THE EXECUTIVE COUNCIL FOR SECOND DEFENDANT
EDUCATION, WESTERN CAPE
CENTRE FOR CHILD LAW AMICUS CURIAE
THE SCHOOL GOVERNING BODY OF
CITY MISSION EDUCATION t/a CMES THIRD DEFENDANT
Date of hearing: 3 and 4 November 2024
2, 5,6 and 9 December 2024
Date of judgment: Judgment was handed down electronically by
circulation to the parties’ representatives by email
and released to SAFLII. The date for hand down is
deemed to be 13 December 2024
JUDGEMENT
A. PARTIES AND RELIEF APPLIED FOR
[1] The plaintiff, City Mission trading as City Mission, Cape Town is a non-
governmental organisation and a registered non -profit organisation previously
known as Mission Homes for Children.
[2] The first defendant is City Mission Educational Services trading as “CMES” a
non-government and non -profit organisation that conducts business as an
independent school at Erf 1 […], situated at 6 […] T[…] Road, Bridgetown,
Cape Town, Western Cape.
[3] The second defendant, the MEC for education, was joined to the proceedings
due to the nature of the relief sought against the first defendant as an
independent school. The Centre for Child Law, an amicus curiae , was
similarly admitted to assist the Court in the constitutional ly mandated task of
safeguarding the interest of the child ren who attend the school operated by
the first defendant. The third defendant is the Governing Body of first
defendant.
[4] The plaintiff seeks the eviction of the first defendant from the property situated
at 6[…] T[…] Road, Bridgetown, Cape Town, Western Cape (“ the property”),
together with further ancillary relief concerning arrear rentals and damages
resulting from the first defendant allegedly remaining in unlawful occupation of
the property.
[5] The plaintiff is represented by Adv Coston and the second defendant by Adv
Mayosi. The first defendant is represented by Mr Andrew van Reenen a board
member of the first defendant. The relief claimed by the plaintiff against the
first defendant could have serious implications for the first defendant as an
independent school. It is self evident that an independent school serves not
only the best interests of the children who attend it, but also the interests of
the community.
[6] The record indicates that the Court has advised the first defendant and Mr van
Reenen on various occasions to consider obtaining legal representation. At
the commencement of the proceedings on Monday, 4 November 2024 , I once
again questioned Mr. van Reenen regarding the measures the first defendant
took to secure legal representation. According to Mr van Reenen, all the
endeavours were unsuccessful, and he indicated that he was prepared to
proceed to trial.
[7] On 8 November 2017, the plaintiff served its summons on the school . On 23
November 2017, Mr van Reenen entered an appearance to defend in his
personal capacity on behalf of the school . Subsequently, the plaintiff applied
for summary judgment. On 19 December 2017, t he application for summary
judgment came before the Honourable Mr Justice Papi er. The Court advised
Mr van Reenen to make every effort to obtain legal representation for the
school at this juncture . Later, the plaintiff applied for default judgment after
the school failed to file a plea . On 24 April 2018, Justice Steyn removed the
application for default judgment from the roll and reserved costs. The parties
were involved in interlocutory disputes regarding Mr van Reenen’s authority to
represent the school on different occasions . They appeared at different time
before Judges Sher, Samela, Binns -Ward, Bozelek, and eventually Acting
Justice Myburgh, who granted an order on 24 May 2021 regarding the joinder
of the MEC and the amicus. The matter was enrolled for trial before Justice
Steyn, who directed that the plaintiff and the school attempt to mediate the
dispute. The parties appointed a mediator and commenced mediation
proceedings, which terminated on the second day of the mediation without a
result due to Mr Van Reenen’s withdrawal from the process. The matter was
subsequently enrolled on various dates and was eventually set down for trial
on November 4, 2024.
B. PRELIMINARY POINTS
[8] Three preliminary points were raised by the plaintiff at the outset . The first
relates to the question of Mr. van Reenen represent ing the first defendant.
The first defendant's response to the plaintiff's Rule 7 notice was the subject
of the second . Lastly, the plaintiff contended that the first defendant was
barred from serving a plea and that the matter should proceed on a default
basis in the absence of an application to uplift the bar.
[9] I debated these points with the plaintiff’s counsel, who correctly conceded that
the bar should be set aside in the interest of justice and that the late filing of
the first d efendant’s plea should be condoned. The first defendant is not a
company but a non -profit organisation. The plaintiff’s counsel similarly
conceded that it was in the interest of justice for me to hear Mr van Reenen
on behalf of the first plaintiff. It was not necessary to deal with the third point
regarding the first defendant’s reply to the plaintiff’s Rule 7 notice.
[10] The fact that the first defendant failed to secure the services of a legal
representative means that the pleadings in the matter do not , per the
provisions of the Uniform Rules of Court, serve to clarify and distil the real
disputes. The plaintiff’s initial approach was that its case regarding ownership
of the property, the conclusion of a lease agreement, and the first defendant’s
unlawful occupation thereof is common cause, and the duty to initiate would,
therefore, rest upon the first defendant.
[11] It became , however, clear after hearing the plaintiff's and Mr . van Reenen's
opening address that the situation was not as straightforward. The first
defendant admits many elements of the plaintiff’s claim, including the
conclusion of a lease agreement, however, he does so only conditionally. The
plaintiff changed its approach with good reason and offered to commence with
evidence.
C. PLAINTIFF’S CASE
[12] The plaintiff claims the eviction of the first defendant on the grounds that it is
the registered owner of the property based upon the actio rei vindicatio .
Alternatively, that the plaintiff and the first defendant concluded a commercial
lease agreement which the plaintiff duly cancelled as a consequence of the
first defendant’s default in effecting payment of the agreed monthly rental and
municipal account. Alternatively, that the lease agreement expired due to the
effluxion of time.
[13] The first witness on behalf of the plaintiff was Ms C T Daniels , the plaintiff's
CEO. Ms Daniels has been involved with the plaintiff since 2000. She was
Initially employed as a staff member, however in 2008, she became a member
of the plaintiff’s board . She was responsible for the administration and
marketing of the plaintiff and continued to serve as a board member until
2008, when she became the CEO.
[14] The plaintiff is a non -profit organisation. During Ms. Daniels's testimony, t he
plaintiff introduced two exhibits into evidence : an aerial photograph of the
property forming the subject matter of the proceedings, as well as an
evidence bundle, respectively marked “A” and “B”. Since 1 March 2000 t he
plaintiff has been registered as a non -profit organisation in terms of the Non -
Profit Organisation Act of 1997. However, it has a significantly longer history
and existence. The plaintiff was engaged in the operation of 16 projects that
provided social services for children, elderly individuals, and their famil ies at
the time of its registration. All the projects were fully managed, financed and
staffed by the plaintiff. During the course of 2006 and 2007, the plaintiff , due
to financial constraints, embarked upon what Ms Daniels described as an
unbundling process.
[15] The different projects were re -organised to enable them to function
independently and register as independent non -profit organisations. The
plaintiff was no longer responsible for financing and managing these projects,
and the staff members employed by the various projects were transferred to
the newly created non-profit organisations.
[16] According to Ms Daniels, a clear example of the aforesaid unbundling process
is that the first de fendant was registered as an independent non -profit
organisation on 14 January 2009 with registration number 065 -660NPO. The
first plaintiff no longer conducted business as City Mission but under the name
and style of City Mission Educational Services.
[17] The aforementioned unbundling process also resulted in the plaintiff and the
first defendant concluding the lease agreement regarding the property. The
lease agreement was concluded on 24 June 2013, and would endure for a
period of 4 (four) years (May 2013 to April 2017). In terms of clause 3.2 of the
lease agreement , the first plaintiff could, if it observes and performs all the
obligations incumbent upon it in terms of the agreement , request the renewal
of the lease upon the same terms and conditions.
[18] Ms Daniels testified that the first defendant never applied for or exercised their
right to extend the lease agreement. This was in part due to the fact that the
first defendant defaulted in paying the agreed rental and municipal account
despite demand.
[19] Ms Daniels provided testimony regarding the minutes of board meetings of
the plaintiff at which the plaintiff resolved upon the unbundling process and
different examples of how the unbundling process was implemented.
According to Ms Daniels, Mr van Reenen w as not a party to these board
decisions since he was at the time an employee of the plaintiff.
[20] On 17 July 2017 the plaintiff directed a letter to the principal of the first
defendant. The contents of which reads as follows:
“… I confirm that on 6 April 2017 CMES was informed in writing that the
Board of City Mission decided that the written lease agreement entered
into between City Mission and CMES for the premises situated at Erf
1[…] (6[…] T[…] Road, Bridgetown) known as GC Williams House (the
premises), which lease period ended on 30 April 2017, will not be
renewed for a further period. Please confirm in writing before 31 July
2017 that CMES understands that it currently does not have a lease
agreement with City Mission to occupy the premises and that CMES
undertakes to vacate the premises by 30 December 2017. This
indulgence is only granted due to the fact that you are currently running
a school on the premises.
All keys for the spaces currently occupied by CMES at the premises
must be handed over to City Mission by no later than 30 December 2017
…”
[21] No undertaking was received, and the plaintiff served its combined summons
on the first defendant on 8 November 2017. Ms Daniels further testified that
the plaintiff’s current constitution was adopted in February 2016. She
emphasised the objectives, powers and rights of the plaintiff. the Department
of Social Development accepted t he plaintiff’s constitution and reaffirmed its
registration as a non-profit organisation with the Department. According to Ms
Daniels, nothing is contained in the plaintiff’s constitution, which obliges it to
continue to support projects such as the first defendant.
[22] Ms Daniels concluded her testimony by disclosing to the Court that the
plaintiff attempted to mediate a settlement with the first defendant but that this
effort was unsuccessful. She placed the failure of the mediation before the
door of Mr van Reenen.
[23] Under cross -examination, Mr. van Reenen put it to Ms . Daniels that the
plaintiff’s ownership of the property was subject to zoning conditions.
According to Mr van Reenen the property was zoned as “community 1” and
could only be u tilised for certain specific purposes. Ms Daniels testified that
she was unable to provide testimony about the zoning conditions and that she
relied upon the plaintiff’s attorneys for guidance concerning the permitted use
of the property.
[24] Mr van Reenen questioned Ms Daniels as to why she failed to mention during
her examination in chief that the school occupies not only units 1, 4 and 7 on
the property but also unit 2. The witness explained that the lease agreement
was silent on the unit numbers and only referred to the property. Ms Daniels
stated that the plaintiff had never gran ted the first defendant use of unit 2 and
that the unlawful occupation of unit 2 had formed the subject of a spoliation
application in the Magistrate’s Court that was decided in favour of the plaintiff.
Ms Daniels further refuted the suggestion by Mr van R eenen that the increase
in the monthly rental was due to an agreement between the plaintiff and first
defendant wherein the first defendant would occupy unit 2 in exchange for
payment of the higher rental.
[25] The cross -examination of Ms Daniels further dealt with the history of the
plaintiff’s ownership of certain church buildings. The church buildings ,
according to Ms Daniels, were also “unbundled” during the 1970s and 1980s.
A similar process was followed as in the case of the plaintiff’s projects that
became autonomous and unbundled during 2006 and 2007.
[26] Ms Daniels conceded that some children who were cared for by the children’s
home known as “ The Homestead” attended the school. Mr van Reenen
continued to spend a large part of his cross -examination confronting Ms
Daniels with different instances in which he alleged to be involved in the
unbundling process. Ms Daniels admitted that the unbundling process was
difficult but persisted that it was eventually successfully concluded.
[27] I have no reason to doubt the credibility of Ms Daniels’s evidence. She
conceded that she did not have personal knowledge of all the allegations with
which Mr van Reenen confronted her since she had not always been involved
in the plaintiff’s operations.
[28] The plaintiff the n called Mr Ashley John Potz , who was employed as the
plaintiff’s Head of Child and Youth Care from 2003 to 2008. Mr Potz also
served as the manager and a member of the board of the non -profit
organisation, which is currently known as Athol Youth Care Cen tre. Mr Potz
explained his involvement in the unbundling process in both his capacities as
a staff member of the plaintiff and manager and board member of Athols
Place. Following the unbundling, Athols Place became an independent non -
profit organisation, complete with its own registration number . The name was
changed from Athols Place to Athol Youth Care Centre. The unbundling
process provided the projects with greater independence and autonomy in
managing their finances, conducting their own fundraising campaigns and
registering as NGOs with the Department of Social Welfare. He explained
that the plaintiff was not legally obliged to support its erstwhile projects
subsequent to the unbundling process, but that the plaintiff remained willing to
assist. To this end, the plaintiff, for example, assisted Athol Youth Care Centre
to acquire the property on which the youth centre is located. The Athol Youth
Care Centre raised all the funds to pay for the transfer costs and dut ies, but
the plaintiff donated the property to Athol Youth Care Centre.
[29] Mr Potz elaborated under cross-examination that the plaintiff’s action to grant
transfer of the property ought to be understood within the historical context of
Athols Pl ace. The history differed materially from that of the first defendant .
He rejected the contention that somebody could merely acquire ownership of
a property by leasing it for an unspecified period.
[30] Athols Place was built on the land where Pastor Athol constructed a house,
which is why the land was donated to Athol Youth Centre . He refuted Mr van
Reenen’s allegation that property belonging to an NGO could only be “handed
over” to a “like minded project”. He explains that this was only the case in the
event of the liquidation of a non -profit organisation, which was not relevant to
any of the first defendant’s claims. According to Mr Potz , the plaintiff held the
custodianship over several churches associated with the mission. He
confirmed the testimony of Ms Daniels that the plaintiff , during the 1970s and
1980s, decided to transfer ownership of the churches to the church groups
while maintaining management of the missions or projects. This came to a n
end as a result of the unbundling process in 2007 and 2008.
[31] The final witness for the plaintiff was Mr Dumisani Matomb ene. The plaintiff
employs him as a Property Manager , and he is responsible for inter alia the
maintenance of the property. He disputed that the school occupied unit 2 and
confirmed that the number of scholars attending school ranged between 40
and 60 learners. In addition to the school, the first defendant operates an
adult learning and skill development centre at the prop erty that serves the
educational needs of young adults (not children of school-going age).
[32] Apart from units 1, 4 and 7 , several other units on the property are occupied
by various community support and development projects such as the projects
named “Ambassadors through sports ” and “Ashes to Beauty.” On weekends,
between 4 to 6 children are cared for in the hostel by one Raymond Brug and
his wife, who resides on the property together with this family. Other families
also reside on the property, but he is unfamiliar with their details.
[33] Under cross-examination, the witness clarified that unit 2, where he resides,
had formerly served as halfway house for persons released after their
incarceration in prison. The halfway house was not in operation when he
occupied unit 2. Mr Matombene further conceded that some of the people
who reside on the property may be in the employ of the first defendant.
D. FIRST DEFENDANT’S EVIDENCE
MR ANDREW CHARLES VAN REENEN
[36] Mr van Reenen testified on behalf of the school. He disputed the validity of
the lease agreement since the plaintiff started the school before the
unbundling process that , in his view , caused havoc . The school allegedly
hesitated to sign the lease agreem ent and eventually did so under duress.
There was a conflict of interest within the plaintiff’s board , and Mr . van
Reenen testified that he believed that the lease agreement was void due to
what he described as nepotism and a conflict of interest between the board
members. He referred to other projects of the plaintiff in Khayelitsha , where
the unbundling process faced challenges. He stated that the current action
fails to take into account the children's interests.
[37] Mr van Reenen further alleged that th e premises is zoned for use as
“community 1” which does not make provision for any commercial activities.
He, therefore, questions how it is possible that the lease agreement, which is
articulated in commercial tones, can be valid. According to him , the children
who attend the school are between the ages of 14 and 18 years, and some of
the children indicated to the amicus that they would not have nowhere else to
go should the school close. He further testified that several persons were
staying on the premises , but that they were not sub -letting from the school.
The school employs these persons and they fulfil duties as caretakers or
hostel parents. He made mention of a gentleman by the name of James and
his wife, as well as one Raymond and Belinda. Mr van Reenen admitted that
the school was in arrears with the payment of the municipal account.
[38] Under cross -examination, Mr van Reenen conceded that he cannot dispute
that the unbundling process commenced in 2006 and was final ised around
2007. He had no involv ement with the plaintiff in any official capacity during
2007. He re-engaged with the plaintiff in 2009. In 2014, he was appointed as
the plaintiff’s operational manager, but he was retrenched on 31 July 2016.
Following his retrenchment , he became involved with the school. Mr van
Reenen, during his tenure as Operational Manager, signed the lease
agreement with the school on behalf of the plaintiff. He was unable to clarify
why he signed the lease agreement on behalf of the plaintiff if he believed that
it was immoral, contrary to the law or illegal. Mr Coston further confronted
him with email correspondence he directed on behalf of the school to the
plaintiff after his retrenchment. No mention is made in the correspondence of
the illegality of the lease agreement. It escaped Mr van Reenen that if the
lease agreement is void, the plaintiff remains the owner of the property, and
the school still has no justifiable basis upon which it can occupy the premises.
[39] Mr van Reenen had to concede that the school failed to pay its arrear rentals
and outstanding amounts due to the municipality. He admitted that the plaintiff
forewarned the school governing body that it would terminate t he lease
agreement or the school’s right to occupation unless the school provided
concrete evidence of the steps it intends to take to bring the arrear rental and
municipal account up to date.
[40] Mr van Reenen was cross examined regarding his knowledge of th e number
of scholars who attend the school. He replied that he relies upon
communication received from the Department of Education and the reports by
the amicus to determine how many children are attending the school. He
failed to take any measures to acquaint himself with the present conditions at
the school, the number of scholars or related aspects. In response to a
question posed by the Court regarding the number of members on the school
governing board and their names, Mr van Reenen replied that the re are four
board members, but he found it difficult to recall all of their names.
[41] The second witness on behalf of the defendant was Mr Z Lightingford. He
was the plaintiff’s CEO in 2006. The witness stated that he declined to
implement the unbundling process, and his employment with the plaintiff was
subsequently terminated. He objec ted to the unbundling process because he
believed that , based upon the information at his disposal, it was immoral,
contrary to the objects of the plaintiff and in violation of labour laws.
[42] During cross -examination, he admitted that he had no dealings wi th the
plaintiff following his departure from the plaintiff’s employ ment, and he could
not dispute that the unbundling process was completed in 2007. He was
confronted with Mr Potz's testimony, that the unbundling process successfully
made certain of the projects financially viable as independent non -profit
organisations, which he admitted.
E. SECOND DEFENDANT’S EVIDENCE
[43] The MEC called Ms Govender , who is a Chief Educational Specialist. She
has been employed by the Department of Education for 38 years and hold s
several tertiary qualifications. She explained the difference between public
and independent schools as well as the fact that some independent schools
receive subsidies from the State. Concerning the relocation of a school from
one premises to another, there are certain statutory and regulatory
requirements that must be fulfilled regarding the suitability of the premises,
health and safety, fire, etc. The entire process to approve a new school
premises can take several months and involve the Department of Education,
the city, and other regulator y bodies. She introduced into evidence a bundle
of documents containing an affidavit by her and her colleagues regarding the
current amount of scholars enrolled at the school . Additionally, it contained
important information regarding public schools in the Athlone area that could
accommodate the children if the school is evicted.
[44] Several factors must be taken into account when relocating a scholar to a
different school. This includes whether the parents wish the child to attend an
independent or a public school, the grade the child attends , and the school’s
curriculum offered. Ms Govender, however, reassured the Court that the
Department is committed to placing all of the children in the schools that she
identified within the Athlone district should the parents decide that their
children should attend public schools. She furthe r mentioned that other
independent schools are situated within the Athlone area. However , the
Department of Education is not in a position to provide housing or hostel
accommodation facilities. She emphasised that it is in the children's best
interest that, should they need to move from one school to the other, such a
change occurs at the beginning of a school year rather than during the course
thereof. If an eviction order is to be granted , it would be preferable if it could
be granted prior to the beginning of the new school year.
[45] During cross-examination Ms. Govender testified that, contrary to what Mr van
Reenen indicated, Mr Ramadiz was not the principal of the school since he
did not hold the necessary teaching qualifications. According to Ms .
Govender the school principal was a Mr Da Silva. She explained that the
Department bases its information on information received from the school and
so-called “headcounts” conducted from time to time. She denied that the
placement of the 77 scholars who currently attend the school will be affected
by possible budget cuts in the future.
[46] The Court enquired from Ms Govender regarding practical measures that
could be implemented to ensure that, should an eviction order be granted, the
scholars and their parents are informed of the possibility that the children,
should they so choose, to be accommodated in the public schools in the
Athlone area identified by the Department. M s. Govender proposed that a
questionnaire and document be circulated to all parents that would include all
the essential information. S he also volunteered that the Department would
designate a person or office to act as a liaison between the parents and the
Department about children’s possible placement in different schools.
F. UNLAWFUL OCCUPATION
[47] Mr van Reenen testified and argued that while the plaintiff is the registered
property owner, it may only exercise its right of ownership subject to certain
specific conditions. He could, however, not advance clear evidence regarding
the nature of the said conditions or provide proof of their existence. The
simple fact that the plaintiff describes the lease agreement concluded
between it and the school as a “commercial lease” is unimportant. On Mr van
Reenen’s own evidence , it was envisaged prior to the unbundling that the
plaintiff would remain the owner of its properties and conclude lease
agreements with the new to-be-created projects and NPOs.
[48] The alternative argument presented by Mr. van Reenen , asserting that the
lease agreement is void because of the alleged conflict of interest, allegations
of nepotism, and contravention of the zoning conditions , would mean that the
lease agreement is voidable, but this would not miraculously change the
reality. If there was no lease agreement concluded , it would mean that there
is no legal basis upon which the school c ould have occupied the premises.
Moreover, Mr van Reenen had to concede under cross-examination that there
could be no objection to why the plaintiff could not lease out the premises to a
different non-profit organisation to operate an independent school. Therefore,
the school is in unlawful occupation of the premises. The consent granted for
the use of the premises subsequent to the unbundling process in 2007 has
been lawfully terminated after the school was granted ample opportunity to
regularise its relationship with the lawful owner.
G. BEST INTEREST OF THE CHILD
[50] The amicus relied on the judgment of Justice Kollapen in Section 27 and
others v Minister of Education and another 1 where the Court stated that
education is not only the means by which individuals are able to fulfil their
potential, it also provides in a wider sense the basis for development and
upliftment. Education is not a privilege but a right creating obligations and the
Court must craft the necessary remedies where the right is infringed.
[51] In AB and another v Pridwin Preparatory School and other s,2 The
Constitutional Court determined that the rights referenced in sections 28(2)
and 29(1) of the Constitution, whe n read together with s 8(2), make it clear
that the rights contained in the Bill of Rights can, depending on the nature of
the rights and the duties imposed by them, be applied horizontally to bind
private parties. Section 8(2) of the Constitution imposes constitutional
obligations on private entities such as the plaintiff and the school.
[52] The Constitutional Court in Governing Body of Juma Musjid Primary School
and others v Essay and others NNO 3 Court was faced with the eviction of a
public school from private property after the Provincial Department failed to
conclude a lease agreement . The Court was alive to the question as to
1 Case number 24565/2012 (GNP) See also Minister of Basic Education v Basic Education for
All (20793/2014) [2015] ZASCA 198; [2016] 1 All SA 369 (SCA); 2016 (4) SA 63 (SCA) (2 December
2015)
2 [2020] ZACC 12 at para 126 and 146 AB and Another v Pridwin Preparatory School and
Others (C CT294/18) [2020] ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC) (17 June
2020)
3 [2011] ZACC 13 Governing Body of the Juma Musjid Primary School & Others v Essay N.O.
and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)
whether the common law remedy of rei vindicatio ought to be developed in
circumstances where a learner’s rights to a basi c education might not be
realised due to an eviction. The Constitutional Court aimed to strike a
balance between the right to basic education on the one hand and property
rights on the other. The court found within the context of the facts in the case
before it that the common law remedy of rei vindicatio had to be developed
and, in appropriate circumstances, curtailed where the exercise of that
remedy may adversely impair a learner’s rights to a basic education. The
Court further determined that there i s no fundamental positive obligation on
the private landowner to provide basic education to learners being taught on
privately owned land by such an owner. The fundamental positive obligation
rests with the National and Provincial Governments.4
[53] The Constitutional Court therefore decided that the landowner had a negative
obligation not to impair the learner’s right to basic education. The content of
this negative duty was that after the owner had allowed the school to be
conducted on its property, the owner should minimise the potential impairment
of the learner’s right to basic education. In that matter the Constitutional
Court held that the landowner acted reasonably in pursuing the eviction of the
public school from its premises . This conclusion was based on the timeline of
events, noting that the application for eviction was lodged in July 2008 more
than two years earlier . The landowner did not seek the eviction of the school
with immediate effect , and there were protracted negotiations with the MEC
regarding the conclusion of a formal lease. However, it could not be expected
of a landowner to continue with negotiations indefinitely and it was decided
that the eviction of the school was just and equitable in the circumstances.
[54] A similar matter was heard in the South Gauteng High Court in Johannesburg
in the matter of United Apostolic Faith Church v Boksburg Christian
Academy5. Willis J , as he was the n, dealt with the issue of ownership of
property that vested in a church that sought the eviction of a school that had
4 Juma Musjid ibid para 7, 57, 59, 62 to 73.
5 2011 (6) SA 156 (GSJ) See also United Apostolic Faith Church v Boksburg Christian
Academy (08/18662) [2011] ZAGPJHC 43; 2011 (6) SA 156 (GSJ) (2 June 2011)
been operating on its land. The Court granted an eviction order providing
specifically that the pupils could complete their second term of the academic
year with t he minimum of disruption and to transfer to another school
elsewhere in time for the beginning of the third term. Similar to what
happened in this trial, Justice Willis held as follows:
“... it is clearly apparent that Mr and Mrs Hill are the directive mi nds
behind the school. Both Mr and Mrs Hill at all times attended the trial
proceedings and gave testimony on behalf of the school. They are
undoubtedly acutely aware of the relevant issues and actively participate
in the current proceedings. From the ev idence of Mrs Hill it emerged
that when the first request was communicated that the school should
vacate the property, a meeting of parents and members was called and
they were informed of that intention. It seems that none of any
subsequent communication s regarding the eviction of the school were
sent to the parents or to anyone else for that matter. It further transpired
from her evidence that no one other than herself and her husband knew,
authorized or ratified the institution of the counterclaim by the school.”
[55] In this matter, the Court is confronted with the predicament that failing to grant
an eviction order and permitting the school to continue occupying the
premises at the start of the new academic year could result in the children
facing the school's eviction later in the academic year. This would not serve
the children's best interests by disrupting their education during the academic
term. This means that while the plaintiff has the right to evict an unlawful
occupier from their property, an eviction order may take effect only one year
later if it is not granted promptly.
[56] Given the evidence and undertaki ng of Ms Govender on behalf of the MEC
that the children will be accommodated in public schools in the same
geographic area should they choose to do so, I believe that it is in the best
interest of the children that certainty be attained . This will afford them and
their parents the opportunity to make an informed decision with regard to their
future education. While navigating this delicate balancing act between the
interest of the children and the plaintiff as landowner, I remain mindful that
both the plaintiff and the school are non -profit organisations. It is unfortunate
that the plaintiff did not inform the Court of its intention with th e property. The
Court was left uninformed by both the plaintiff and the school to a large extent
regarding their day -to-day operations with specific reference to basic
education. Apart from the reports filed by the amicus and the testimony by Ms
Govender on behalf of the MEC, the children were voiceless and the victims
of what transpired to be a commercial dispute at best and, at worst, a
personal crusade by Mr van Reenen . Confronted with a choice between two
undesirable options, I find that it is just and equitable that the school be
evicted. The school failed to place evidence before the Court regarding
exactly who resides on the property. I am therefore , not convinced that an
eviction order can be granted against all individuals who reside through o r
under the school without them first receiving the necessary statutory notices
and be afforded a hearing in accordance with the provisions of PIE. There
can, however, not be much doubt that all these persons came to reside on the
premises solely because they, according to Mr van Reenen, are employed by
the school. No children who reside on the property in the hostel may be
evicted and I will provide in the order granted specifically for a mechanism to
protect their rights.
H. COSTS
[58] It speaks for itself that the entitlement of the costs of the action is self evident.
When the question arises whether such costs should be granted on a punitive
scale and whether it should include costs de bonis propriis against Mr. van
Reenen.
[59] Mr van Reenen left a notable impression on the Court as an intelligent and
articulate individual who , regrettably, often resorted to broad generalisations
concerning serious issues such as allegations of conflict of interest and
nepotism. Mr . van Reenen is deeply connected within the community and
obviously cares for the plight of disadvantaged children. He claimed to have
only good intentions in ensuring that street children be educated to prevent
them from turning into gangsters. However, it is greatly concerning that Mr
van Reenen based the whole of the school’s defence to the eviction
proceedings on personal disagreements from nearly 15 years ago. He was
unable to provide personal testimony regarding the number of children at the
school and instead depended on the second -hand information presented in
the amicus in MEC's evidence.
[60] He was unable to recall the surname of one of his fellow board members and
testified that the board convened “informally” more than six months prior to
the trial. His evidence is palpably rejectable as lacking credibility given that
the version he testified to is clearly contradicted by email correspondence he
authored regarding the school’s arrears and the possible cancellation of the
lease agreement prior to the institution of these proceedings. He was unable
to provide a credible explanation for why he signed the lease agreement on
behalf of the plaintiff as its former Operational Manager, the same lease
agreement he now c laims was signed under duress, without calling a ny
witnesses or Mr Ramadiz who signed the lease on behalf of the school to
clarify the nature of the duress or undue influence they experienced. This is
despite the fact that Mr Ramadiz attended the court on all the days that
evidence was led. Regardless I will afford Mr Van Reenen a further
opportunity to advance reasons why he should not be ordered to pay the
costs with the school.
[61] I gave ex -tempore reasons for finding that the first defendant is i n unlawful
occupation on Monday, 9 December 2024 . The eviction order was, however,
immediately suspended pending the finalisation of a draft order that I
requested the parties to prepare. Counsel for the plaintiff and the MEC
provided a proposed draft orde r, which order I granted on Monday afternoon,
incorporating certain amendments in the terms as set out hereunder.
[62] The plaintiff’s attorneys are further directed to serve forthwith the order as per
paragraph 8 thereof, and a copy of this judgment must be served on Mr Van
Reenen per paragraph 12 of the order
[63] In the premises, an eviction order is granted in terms of the Court order dated
9 December 2024 in the following terms and subject to the conditions
stipulated therein:
HAVING considered the evidence presented by the parties and after having heard
closing argument by the representatives on record IT IS ORDERED AS FOLLOWS:
1. The second defendant’s application in terms of Rule 38(2) is granted and the
affidavits by the following persons are admitted into the evidence:
1.1. Ms Kubeshini Govender
1.2. Mr Malcom Williams
2. It is declared that the First Defendant (and all other occupiers who came to
occupy by, through or under it) is in unlawful occupation of the Plaintiff’s
property known as GC Williams House and further described as Erf 1 […]
situated at 6[…] T[…] Road, Bridgetown (‘the property’).
3. Save for as provided for in paragraphs 5 and 7 below in respect of the
learners who are currently enrolled according to the Second Defendant’ s
records with City Missions Educational Service trading as CMES, the First
Defendant (and all other occupiers by, through or under it) are ordered to
vacate the property and shall vacate same by no later than Monday, 15
February 2025,
4. If the First Defen dant (and all other occupiers by, through or under it) fail to
vacate the property on the date determined in paragraph 3 above, the Sheriff
(or his lawful deputy) for the area within which the property is situated is
authorised and directed (with the assis tance of the South African Police
Service, if necessary) to forthwith evict the First Defendant and all those
holding title under it from the property.
5. The eviction of the First Defendant (only in terms of its schooling activities and
in respect of the le arners who are currently enrolled according to the Second
Defendant’s records with the First Defendant) is suspended pending the
return date on 28 March 2025 at 10:00 before this court and the Second
Defendant, without delay, taking all reasonable steps to place/relocate the
First Defendant’s learners (whose parents or legal guardians have agreed in
writing to do so) in appropriate schools for the 2025 school year by no later
than Monday, 17 February 2025.
6. To enable the Second Defendant to comply with par agraph 5 above, the First
and Third Defendants are ordered to without delay and before Friday, 13
December 2024:
6.1. Inform in writing and deliver by email or prepaid registered post and/or
by hand to the parents or legal guardians of any learners currently
enrolled with it for schooling for the 2024 and 2025 academic year in
writing that:
6.1.1. the First Defendant is being evicted from the property; and
6.1.2. the parents or legal guardians can elect to make their own
alternative arrangements regarding their children’s schooling
and enrolment for the 2025 school year alternatively consent to
the placement of the learners by the Second Defendant in the
nominated public schools for the 2025 school year; and
6.1.3. the accompanying document prepared by the Second
Defendant, and annexed hereto as “ A” (‘the form’), must be
completed by the parents or legal guardians of the learners and
thereafter submitted to the Second Defendant in one of the
following ways by no later than Monday, 13 January 2025:
6.1.3.1. completing the form a nd placing same in a
collection box set aside for this specific purpose at
Bridgeville Primary School which is situated at 58
Kiewiet Road, Bridgetown, Cape Town; or
6.1.3.2. completing the form and delivering it to the Western
Cape Education Department’s District Office
situated in Maitland at the c/o Haven Road &
Swallow Street, Maitland, Cape Town (‘the District
Office’); or
6.1.3.3. scanning the documents and emailing same to the
email addresses of Mr. Wayne Abrahams at W[…]
or to Ms. Brenda Robertson at: B[…].
6.1.3.4. Should the learners’ parents or guardians request
the Second Defendant to place/relocate their child,
they should complete annexure “ B” hereto, (the
late admi ssion form) and submit same to the
District Office or by email as set out in paragraph
6.1.3.3 above for the attention of Mr. Wayne
Abrahams or Ms. Brenda Robertson on or before
Monday, 13 January 2025.
6.1.4. furthermore, that the parents or guardians of each l earner must
sign a copy of the First Defendant’s letter as contemplated
above (with their name, surname and contact number)
confirming receipt of same and the form (as annexed hereto as
annexure A).
6.2. The First and Third Defendant shall provide the Second D efendant with
an updated contact list of the parents and/or legal guardians of the
learners, and copies of receipt of Annexure A by no later than 20
December 2025;
6.3. The First and Third Defendants must file an affidavit reporting on their
compliance with pa ragraphs 6 to 6.2 by no later than Friday, 10
January 2025.
6.4. In the event a parent and/or legal guardian of a learner does not, for
whatever reason, complete and/or submit the form by the time provided
for in this Order, the Second Defendant shall contact the learner’s
parents or legal guardians from the contact details provided by the First
Defendant and request the parents or guardian to complete the form,
failing which it will be accepted that the Second Defendant’s offer to
place/relocate the learner(s) has been formally rejected by the parent
or guardian of the learner(s).
7. The Plaintiff and Second Defendant shall ensure that if any minor children are
enrolled with the First Defendant and reside at the property as of the date of
this order and who do not have alternative accommodation or leave the
property for the December school holiday:
7.1. Those children are referred to the Provincial Department of Social
Development (“ DSD”) for an assessment of the minor child and their
parents to be undertaken, including options for alternative
accommodation of the minor child.
7.2. The Plaintiff and Second Defendant shall consider the DSD report,
engage with the child and their parents or caregivers and, if appropriate
in light of the child’s age, the child, about alternative accommodation
options.
7.3. The Plaintiff shall on or before 28 February 2025 file an affidavit with
the Court, setting out detail of any such children and the assessment by
DSD, its engagement with any child and the parents or caregivers and
the outcome of the engagement process.
7.4. The Court shall determine the dat e of the eviction of any minor child
and the alternative accommodation the child be offered if any.
7.5. To this end the First and Third Defendants will co -operate with the
Plaintiff, the Second Defendant and DSD to ensure that there can be
meaningful engagement with any child who resides at the property and
the DSD.
7.6. No children are to be evicted from the property until the above process
is completed.
8. This order shall be served on the First and Third Defendants and notice
thereof be given in the following manner:
8.1. By serving a copy of this order upon the First and Third Defendants.
8.2. By affixing a copy and displaying it prominently at each of the
entrances to the property.
8.3. By affixing a copy and displaying it prominently at each of the buildings,
classrooms and offices occupied by the First Defendant at the property.
9. Pending the eviction of the First Defendant (and all other occupiers by,
through or under it), the First Defendant and all its authorised representatives
are interdicted and restrained with immediate effect:
9.1. From inviting members of the public to enrol their children with the First
Defendant for the 2025 school year at the property; and
9.2. From taking any steps to enrol new learners for the 2025 school year at
the property.
10. This interdict as set out in paragraphs 9.1 and 9.2 above shall operate in the
interim and with immediate effect pending the return day of March 28, 2025
before this court.
11. The First and Third Defendants are ordered to pay jointly and severally, the
one paying the other to be absolved, the Plaintiff’s costs of suit on the scale
as between attorney and client.
12. Mr. Andrew Charles van Reenen (Identity number: 6 […]) i s called upon to
show cause on Friday, 18 March 2025, at 10:00 before this court why he
should not be ordered to be liable jointly and severally with the First and Third
Defendants for the Plaintiff’s costs de bonis propriis on the scale as between
attorney and client.
13. This Court shall retain supervision of the implementation of the order on the
following terms:
13.1. The Second Defendant shall on or before 28 February 2025 file an
affidavit with this Court specifying which of the children, parents or legal
guardians accepted the Second Defendant’s offer to place/relocate
their child and the details thereof in compliance with paragraphs 5 and
6 above.
13.2. The amicus is re quested to consider the affidavit of the Second
Defendant provided for in paragraph 13.1 above and furnish the Court
with a report in response thereto.
13.3. The Plaintiff, First and Third Defendants are granted leave to file an
affidavit regarding the contents of the Second Defendant's affidavit
provided for in paragraph 13.1 by no later than 21 March 2025
13.4. The Court shall consider the affidavits and make any further order it
deems including terminating its supervision.
13.5. Any party may, at any stage, and on noti ce to the other parties,
approach the Court for the variation of this order.
14. The relief sought in prayers (c)(i) and (ii) and (d) of the Plaintiff’s Amended
Particulars of Claim is postponed sine die.
VAN DEN BERG AJ
PLAINTIFF ADV P COSTON
MARIAS MULLER HENDRICKS KUILS RIVIER
SECOND DEFENDANT ADV T MAYOSI
STATE ATTORNEY, CAPE TOWN
MARAIS MULLER HENDRICKS KUILS RIVER
C/O MMH CAPE TOWN
4th FLOOR, GENERAL BUILDING
42 BURG STREET
BOX 88