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[2019] ZASCA 91
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Mngomezulu v Ethekwini Metropolitan Municipality (079/2018) [2019] ZASCA 91 (3 June 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 079/2018
In
the matter between:
NKOSINATHI
WISEMAN
MNGOMEZULU APPELLANT
and
ETHEKWINI
METROPOLITAN
MUNICIPALITY RESPONDENT
Neutral
citation:
Mngomezulu v Ethekwini
Metropolitan Municipality
(079/2018)
[2019] ZASCA 91
(03 June 2019)
Coram:
Leach, Dambuza, Molemela and Schippers
JJA and Eksteen AJA
Heard:
03 May 2019
Delivered:
03 June 2019
Summary:
Delict – claim for damages for
unlawful destruction of property and unlawful assault – plea of
self-defence raised –
no proof that claimant acted lawfully in
defence of property – defensive action must be reasonable and
taken against imminent
act of aggression.
ORDER
On
appeal from
: KwaZulu-Natal Division,
Durban (Pillay J sitting as court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Dambuza
JA (Leach, Molemela and Schippers JJA and Eksteen AJA concurring):
Introduction
[1]
The appellant, Mr Mngomezulu, appeals against an order of the
KwaZulu-Natal Division of the High Court (Pillay J), hereafter
the
High Court, in terms of which his claim against the respondent for
damages, based on alleged unlawful demolition of his informal
dwelling and being shot by the respondent’s functionaries, was
dismissed. The appeal is with leave of the High Court.
Background
[2]
On 28 March 2013 the Member of the Executive Council for Human
Settlements and Public Works for the Province of KwaZulu-Natal
(MEC),
having experienced an increase in illegal settlements on vacant land
located in various areas under his department’s
jurisdiction,
obtained an interdict in the high court (the March order per Koen J),
directing the Ethekwini Metropolitan Municipality
(the Municipality),
as the governmental authority responsible for making land available
for implementation of the government’s
social housing policy,
assisted by members of the South African Police Service (SAPS), to
‘take reasonable and necessary
steps to prevent any persons
from invading, occupying, constructing structures and/or placing any
material upon the immovable properties’
in question. It also
authorised the Municipality and the police to demolish and remove
structures that had been built on the identified
land.
[3]
The portions of land relevant in these proceedings (to which the
March order related) were lots 17, 18 and 19 of Erf 960, located
in a
forested area on the edge of the Cato Crest informal settlement in
Durban. Armed with this order, the Municipality embarked
on rolling
evictions of residents from the identified areas and demolition of
their informal dwellings. The Cato Crest informal
settlement
residents, assisted by the social movement known as Abahlali
Basemjondolo, instituted court proceedings against the
Municipality
and the MEC, challenging the evictions. On 22 August 2013, the
Constitutional Court granted a provisional court order
which
incorporated an undertaking by the Municipality and the MEC that they
would stop evicting the residents until the March interim
order was
finalised.
[4]
Subsequent to the court order of 22 August 2013, further demolitions
occurred. Thereafter a series of other court orders were
obtained by
the residents as the Municipality, through its land invasion unit
(LIU), continued to demolish what it considered to
be newly built
structures. According to the Municipality the further demolitions
were limited to new dwellings, built subsequent
to the order of 22
August 2013.The Municipality insisted that it was bound to comply
with the March order which remained extant.
[5]
On the morning of 21 September 2013, as the LIU, led by Mr Gavin Le
Cordier, was preparing to resume with the demolitions, Mr
Mngomezulu,
armed with a long piece of sharpened metal that he described as a
spear and a shield, confronted Mr Le Cordier. The
different versions
on what exactly happened during this incident are discussed later in
this judgment. By the end of that confrontation
Mr Mngomezulu had
sustained 4 gunshot wounds to the abdomen whilst Mr Le Cordier
sustained a superficial stab wound to the stomach.
As a result of
this incident Mr Le Cordier spent a night in hospital whilst Mr
Mngomezulu spent about a month and a half under
police guard in
hospital, and thereafter, was detained in prison for a further
period. A charge of attempted murder which was proffered
against Mr
Mngomezulu was later withdrawn as the public prosecutor declined to
prosecute.
The
high court proceedings
[6]
On 27 October 2014, Mr Mngomezulu instituted proceedings in the high
court, claiming damages against the Municipality and the
Minister of
Safety and Security for unlawful demolition of his dwelling, the
assault on him and unlawful arrest and detention.
The Municipality
pleaded that Mr Le Cordier had shot Mr Mngomezulu in self-defence as
he (Mr Mngomezulu) had attacked him with
a spear. It also pleaded
that it demolished the dwellings at the Cato Crest settlement in
execution of the high court interim order
in terms of which it was
ordered to prevent settlement on the identified portion of Erf 960.
[7]
At the trial the Municipality’s version of the incident was
that on the morning of 21 September 2013, whilst Mr Le Cordier
and
his LIU team were preparing to start the removal of newly built
structures from portions 17, 18 and 19 of Erf 960, Mr Mngomezulu
approached some members of the LIU team, singing and dancing,
brandishing a weapon, his spear in one hand, and a ‘plastic
lid’ which he held as a shield, on the other. Members of the
LIU chased him away. For a while it appeared that he had left,
but he
made a second approach, this time to a different group of LIU members
elsewhere on the property. Mr Le Cordier was in this
group. Mr
Mngomezulu approached Mr Le Cordier, still brandishing the spear,
shouting and singing. He ignored Mr Le Cordier’s
repeated
instructions to leave the scene. As he continued to approach, Mr Le
Cordier fired tear gas filled plastic balls from a
‘paintball
marker’. Undeterred, Mr Mngomezulu continued to approach. Mr Le
Cordier exchanged the paintball marker for
a firearm, a 9mm pistol.
He then fired four shots into the ground, at the same time warning Mr
Mngomezulu, verbally, to turn back.
As Mr Mngomezulu continued to
advance Mr Le Cordier stepped back and, as he did so, he tripped and
fell. Whilst he was on his back
on the ground Mr Mngomezulu stabbed
him in the abdomen with the spear and immediately prepared for a
second stab. Fearing for his
life, Mr Le Cordier fired three shots at
him, hitting him in the abdomen. Only at that stage did Mr Mngomezulu
run away.
[8]
Mr Mngomezulu’s version was that he came to settle on the land
in question in May 2013. His first encounter with Mr Le
Cordier was
in the afternoon the day before the incident, when he (Mr Le Cordier)
and his team came to demolish dwellings at the
Cato Crest settlement.
Mr Mngomezulu unsuccessfully tried to stop the demolitions by showing
Mr Le Cordier a copy of an interdict
which prohibited the
demolitions. The demolitions proceeded and Mr Mngomezulu’s
dwelling was amongst the structures that
were destroyed on that day.
His version was that his dwelling was situated outside lot 17, 18 and
19 of Erf 960 and therefore the
March order did not apply to it.
After the LIU members left the settlement, community members started
re-building the demolished
structures.
[9]
The following morning, as members of the LIU prepared to resume the
demolitions, Mr Mngomezulu and two companions approached
Mr LeCodier.
Mr Mngomezulu was carrying a cast iron tool with which he had been
rebuilding his demolished dwelling. When they were
about seven metres
from the members of the LIU, Mr Le Cordier fired shots at them, at
first ‘with rubber bullets’ and
later with a ‘shot
gun’. Mr Mngomezulu was struck by a bullet, but he instructed
his two companions to turn back whilst
he continued to advance on Mr
Le Cordier alone. As Mr Le Cordier tried to retreat he tripped on a
tree and fell, and his firearm
fell out of his hand. Mr Mngomezulu
then struck him with the iron tool. According to Mr Mngomezulu the
shooting was unjustified
as he was defending his home against the
unlawful attack which had happened the previous day.
[10]
In dismissing the claim, the high court found that Mr Mngomezulu had
failed to prove that the LIU had in fact demolished his
home. More
particularly he had failed to prove that he even had a structure
located outside the affected area. The court accepted
the version
tendered by the municipal functionaries, that they only demolished
uncompleted and uninhabited structures located on
portions 17, 18 and
19 on Erf 960 (also described as outside the woods) as per the March
court order. It found that Mr Mngomezulu
was evasive when giving
evidence and was a dishonest and unreliable witness. He had denied to
the police that he had stabbed Mr
Le Cordier. Despite these findings
the claim for unlawful arrest and detention succeeded against the
Minister of Safety and Security
because the arresting police officer
never gave evidence to show why it had been decided to arrest Mr
Mngomezulu.
Submissions
on appeal
[11]
Mr Mngomezulu’s contention was that the High Court’s
adverse credibility findings were unjustified in the face
of the
common cause facts that he was well known and supported by other
members of the Cato Crest community and that he had been
rebuilding
his shack on the morning of the incident. His version that he had a
home in the area and that his home was destroyed
by the employees of
the Municipality was satisfactorily established, so it was submitted.
[12]
Mr Mngomezulu also contended that the Municipality’s plea of
self-defence was misplaced as it was members of the LIU
that invaded
the settlement and demolished homes. He had approached Mr Le Cordier
in defence of his and his neighbours’ homes,
as he was entitled
to do. His approach was never threatening. He only had in his
possession the ‘tools’ that he had
been using to rebuild
his demolished shack. Although he was entitled to attack Mr Le
Cordier in defence of the demolished homes,
his intention was to only
remonstrate with him. There was no justification for shooting at him.
Notably, however, although it was
common cause that certain
structures had been demolished by the LIU, only Mr Mngomezulu
testified to having had a home amongst
the destroyed structures.
Discussion
[13]
It is important, firstly, to observe that the onus was on Mr
Mngomezulu to prove destruction of his dwelling. In the summons
he
pleaded that on 21 September 2013 he had been on his way home when he
was ‘unlawfully assaulted and shot by uniformed
members or
employees of [the Municipality’s] Police Division’ who
also demolished his home and personal belongings.
During cross
examination Mr Mngomezulu’s version changed. It was put to Mr
Le Cordier that he was stabbed while Mr Mngomezulu
‘was
defending his home against an unlawful attack’. However, his
evidence was that his dwelling was destroyed on the
afternoon
preceding the incident. And at the hearing of the appeal the
contention was that he was defending his home and the homes
of his
fellow community members when the incident happened.
[14]
Contrary to the submissions made on Mr Mngomezulu’s behalf the
credibility findings made by the high court find support
in the
record. He had difficulty in explaining his use, on his hospital and
other records, of addresses other than where his dwelling
was
allegedly situated. His explanation was that he did not understand
English. This was inconsistent with the lengthy discussion
that he
had allegedly held with Mr Le Cordier on the afternoon preceding the
incident, trying to convince him and his colleagues
that the
demolitions were prohibited in terms of a court order. Further,
certain material details of his version were never put
to the
municipal witnesses. It was not put to Mr Le Cordier that Mr
Mngomezulu was in the company of two people when the incident
occurred. He also could not explain why Mr Le Cordier shot at him
when he was in the company of two other men. Neither could he
explain
why he failed to divulge in his complaint about the shooting to the
police, that he was armed when he approached Mr Le
Cordier, and that
he stabbed him during the incident. Interestingly, the evidence of
his witness, Mr Sibusiso Zikode, was that
Mr Mngomezulu was not armed
at the time of the incident.
[15]
On the other hand, no criticism was levelled at the evidence tendered
on behalf of the Municipality. Neither were any adverse
credibility
findings made by the High Court. The high watermark of Mr
Mngomezulu’s case was that Mr Le Cordier could not
be certain
that structures located outside Portion 17, 18, and 19 of Erf 960,
where Mr Mngomezulu’s structure was allegedly
located, were
demolished. Yet Mr Le Cordier had repeatedly denied in his evidence
that there were such demolitions. Even if he
could not be certain on
this aspect there had to be credible evidence to prove the
allegations made. On a balance of probabilities,
Mr Mngomezulu failed
to prove that he indeed did have a home that was destroyed by
municipal employees as alleged.
[16]
Ultimately, the evidence proved that Mr Mngomezulu approached members
of the LIU armed with a spear. He ignored Mr Le Cordier’s
repeated warnings for him to turn back. He was undeterred by the
paintball marker shots. He was unfazed by Mr Le Cordier’s
exchange of the paintball marker for a firearm. He continued to
advance on Mr Le Cordier even after the shooting had started. All
this persistence accords with the finding by the High Court that he
was the aggressor. The conclusions by the high court that he
was the
attacker and that Mr Le Cordier shot him in self-defence were
correct. Mr Le Cordier’s multiple shots were a desperate
last
resort self-defence. Had he not fired he would undoubtedly have been
seriously injured by being stabbed whilst lying helpless
on his back
on the ground. The shooting was a reasonable measure to protect his
life in the circumstances.
[17]
Ordinarily Mr Mngomezulu had the right to defend his neighbours’
property in appropriate circumstances. Every right or
legally
protected interest, including the right or interest of a third party,
can be protected by an act of defence.
[1]
But
Mr Mngomezulu had the onus to prove that his action in approaching
and assaulting Mr Le Cordier with the spear was legitimate
defensive
action. The onus entailed not only asserting that the assault on Mr
Le Cordier was taken as defensive action, but also
that it was
reasonable defensive action, taken against an imminent act of
aggression.
[2]
Future
danger, danger which is not imminent or conduct that has ceased to
constitute danger does not entitle one to raise the defence.
[3]
The
act of defence is justifiable only if objectively, it was reasonably
necessary for the purpose of protection of and was not
excessive to
the threatened harm.
[4]
Moreover,
although proportionality of conflicting interests is not a strict
basis for determination of justifiability, extreme disproportionality
renders the defensive action unjustifiable.
[18]
In this case, as stated, there was no evidence of people having lost
their homes and belongings. Only newly built, incomplete
and
uninhabited structures were destroyed. No one was killed or even
injured during the demolitions. Mr Mngomezulu had no right
to attack
Mr Le Cordier with a spear as he did. His defensive action was
unreasonable in the circumstances.
Costs
[19]
Counsel for Mr Mngomezulu submitted that in the event of the appeal
being dismissed no costs order should be made against Mr
Mngomezulu
as he was vindicating his constitutional right of resisting eviction
from his home by the state. The principle which
Mr Mngomezulu invokes
provides that an unsuccessful litigant in constitutional litigation
against the State ought not to be ordered
to pay costs, unless the
proceedings are frivolous or vexatious or in any other way manifestly
appropriate.
[5]
It
is aimed at preventing ‘the chilling effect that adverse costs
orders might have on litigants seeking to assert their constitutional
rights’.
[6]
It
is important to highlight that the principle applies in respect of
constitutional litigation. Even then, it is not a rule of
rigid
application. It is also not intended to promote ‘risk-free’
constitutional litigation.
[7]
The
court still has a discretion to order costs in appropriate
circumstances.
[8]
[20]
More importantly for this case, the general rule in civil litigation
that costs should follow the result remains applicable.
This case is
distinguishable from
Biowatch
,
Harrielall
and other cases in which constitutional rights were invoked. Mr
Mngomezulu claimed delictual damages for destruction of his property
and unlawful assault. He did not seek to vindicate any constitutional
rights or any issue of public importance
.
That was done in the various
applications in which it was sought to stop the evictions. The
distant connection between the claim
for delictual damages and the
evictions does not imbue these proceedings with a constitutional
nature. There is no reason why the
costs should not follow the event.
[21]
The appeal is dismissed with costs.
_________________
N Dambuza
Judge of Appeal
Molemela
JA
[22]
I have had the benefit of reading the majority judgment penned by my
sister, Dambuza JA. I agree that the appeal against the
order of the
court a quo pertaining to the merits falls to be dismissed. My
respectful disagreement with my colleague’s proposed
order
relates only to the issue of costs. I am of the view that the
Biowatch
principle is applicable in relation to the cost orders pertaining to
the claims for compensation for destruction of property and
damages
for assault. I also hold the view that each party must pay its own
costs of the appeal. The reasons for my disagreement
with the
majority judgment on the costs issue are set out hereunder.
[23]
In the course of adjudicating the matter, the court a quo bemoaned,
correctly in my view, the attitude of the first respondent
in
purporting to execute a court order (the March order) that had
already been set aside by a subsequent court order. The court
a quo’s
stance on the issue was well articulated in its judgment. I can do no
better than to quote the relevant passages
verbatim
. It stated
inter alia as follows:
‘
[38]
. . . Seized with demolition and eviction matters, courts are
enjoined by the Constitution to consider all relevant circumstances.
The March order was granted urgently, collaboratively without
opposition from Ethekwini (which provided the evidence for the
application)
and SAPS, without notice to the occupiers and
consequently without “considering all the relevant
circumstances”.
[39]
Second, the March order was overtaken by the August and subsequent
orders. Practically the LIU could not implement the March
order
without violating the subsequent orders. The order directing that the
marking of the sites has yet to be undertaken.
[40]
Third, municipalities have a ‘direct and substantial’
interest in litigation that results in homelessness. They
have been
joined in such litigation because their constitutional obligations to
the homeless are automatically engaged when courts
grant eviction
orders. Consequently Ethekwini’s application for the March
order was extraordinarily insensitive to its constitutional
commitments.
[41]
Fourth, the March order was a nullity. It was sought and obtained
without notice to the plaintiff and occupiers of the informal
settlement. Ethekwini proffered no evidence that it served the March
order on the plaintiff or anyone else. Effectively, the March
order
was granted without having afforded the owners and (potential)
occupiers of the shacks an opportunity to be heard before
the shacks
were demolished. Consequently the March order was not binding on
them. In all the circumstances, to persist in these
proceedings on
relying on it again signals intransigence on the part of Ethekwini.
[42]
Against this background, counsel for the plaintiff submitted that by
the LIU repeatedly defying the August and September court
orders it
provoked the plaintiff to resist the demolitions with force. Mr
Kippen who accompanied Mr Le Cordier conceded that the
occupiers
would not have been aware of the intention of members of the LIU to
demolish only unoccupied shacks; consequently their
response to the
demolitions was predictably hostile.
[43]
The March order on which Ethekwini relied to effect the demolitions
did not cite the plaintiff as a party. This is immaterial
to
determining the lawfulness of the conduct of the members of the LIU
in violating the August and September court orders.
[44]
There is a steady line of cases from the appellate courts that impose
an obligation on local authorities to engage meaningfully
with
unlawful occupiers of land. Surprisingly, Ethekwini sought and
secured the March order apparently without any engagement.
Counsel
for Ethekwini submitted that any engagement was not possible because
the shacks demolished had no occupants. But the structures
were
shacks for human occupation. Human hands were involved not only in
the construction of the shacks but also in the procurement
of the
materials, plans to occupy the structures once built and to rebuild
them once demolished. Evictions and homelessness were
inevitable.
Thus, even if the shacks were unoccupied, members of the LIU ought
reasonably to have anticipated that the destruction
of the unoccupied
structures would lead to homelessness. Instead of avoiding
homelessness, Ethekwini created it. Worse still, it
doggedly
continued to demolish the shacks in the face of escalating
resistance. Seeking out and engaging meaningfully with those
affected
was Ethekwini’s constitutional duty.
[45]
If Ethekwini attempted to engage meaningfully with the occupiers of
the informal settlement at Cato Crest it led no such evidence.
The
court acknowledges that Ethekwini’s duty to engage meaningfully
would not have been easy. Evidence of protests by the
community
against the respondents’ employees on at least three instances
that surfaced in this trial suggests that the informal
settlement
community was unapproachable for dialogue. Ethekwini would not be
able to fulfil its constitutional responsibilities
if the community
fails or refuses to engage meaningfully. Nor can peaceful solutions
be found if the community’s ostensible
demand is for social
housing but its protest actions are for some other unarticulated
purpose.’
(Footnotes omitted).
[24]
I am in respectful agreement with the views expressed above. In my
view, the remarks made by the court a quo loudly attest
to the
applicability of the
Biowatch
principle to this litigation and
thus constitute the very reasons that should have prompted the court
a quo to exercise its discretion
in favour of applying the
Biowatch
principle. It did not do so.
[25]
It is trite that in awarding an order of costs the court of first
instance exercises a discretion. A court of appeal will not
readily
interfere with that discretion. It is well-established that the
discretion must be exercised judicially, having regard
to all the
relevant circumstances.
[9]
The
power to interfere on appeal is limited to cases of vitiation by
misdirection or irregularity, or the absence of grounds on
which a
court, acting reasonably, could have made the order in question.
[10]
[26]
Section 172 of the Constitution vests in a court wide remedial powers
when dealing with constitutional matters.
[11]
In
terms of this provision a court may make any order – including
a costs award – that is just and equitable. Clearly,
the nature
of the dispute is a relevant consideration in the determination of a
costs award. It is abundantly clear from the passage
quoted above
that the court a quo considered the appellants claim for compensation
for destruction of his property to have raised
constitutional issues.
Certainly, the claim for compensation for destruction of the
appellant’s dwelling unquestionably raises
constitutional
issues. The following remarks made by the Constitutional Court in
Machele
& others v Mailula & another
[12]
are
apposite:
‘
Widespread
removals of people from one area to another occurred frequently. This
history is well known. We now have a Constitution
which specifically
protects against arbitrary evictions. In my view, an eviction from
one’s home will always raise a constitutional
matter. Further,
in the
Jaftha
case,
Mokgoro J said that “at the very least,
any
measure
which permits a person to be
deprived of existing access to adequate housing, limits the rights
protected in section 26(1).”
It follows that the relief sought
by the applicants raises a constitutional matter.’
(Footnotes omitted)
[27]
With regards to this matter, the incident pertaining to the alleged
destruction of the appellant’s dwelling on 21 September
2013
was yet another incident of a series of unlawful evictions that had
been executed by the first respondent on the strength
of the March
order. it is of significance that t
he
same order the respondents relied upon in effecting the evictions has
been an issue for consideration by the Constitutional Court
in
Zulu
& others v Ethekwini Municipality & others
,
[13]
albeit
in a slightly different context. In that regard, the court held as
follows:
‘
Preventing
the appellants from continuing to occupy the property would amount to
their eviction because they would be precluded
from either returning
to their homes after a temporary absence or because they would be
kicked out of their homes to prevent them
from continuing to occupy
the property. This means that, to this extent, that part of the
interim order is an eviction order.’
[14]
[28]
It was stated in
Lawyers
for Human Rights v Minister in the Presidency & others
[15]
that
the well-established test when considering whether to award a costs
order against a private party in constitutional litigation
is whether
the litigation in question was frivolous, vexatious or manifestly
inappropriate. The court stated that ‘to be
subject to an
adverse costs order, the litigant’s conduct must be worthy of
censure.’
[16]
In
this matter, it is self-evident from the court a quo’s own
remarks that the appellant’s main objective was to vindicate
his constitutional rights. It did not find that the appellant’s
claim was vexatious. I am of the view that there are simply
no facts
that suggest that his claim was vexatious. Since the appellant’s
claim for compensation for destruction of his dwelling
raised
constitutional issues, it fell squarely within the purview of the
Biowatch
principle.
Against the face of ongoing unlawful evictions, the fact that other
unlawful occupiers had previously obtained relief
could hardly be a
factor that could tip the scales into granting an adverse order of
costs in relation to a dispute pertaining
to fresh demolitions. The
court a quo should therefore have applied the
Biowatch
principle despite dismissing the appellant’s claim for
compensation for destruction of his property. After all, the
dismissal
of that matter did not detract from the nature of the
claim. It remained a dispute relating to eviction and thus raised a
constitutional
issue.
[29]
As regards the remaining claim for damages for assault, which was
also correctly dismissed by the court a quo, I hold the view
that the
dismissal of that claim should not, without more, have been
accompanied by an adverse order of costs. The majority judgment
found
that the appellant did not seek to vindicate any constitutional
rights or any issue of public importance
.
It further found
that there is a distant connection between the claim for delictual
damages and the evictions. I respectfully disagree.
[30]
In my view, the court a quo ought to have taken the context in which
the incident happened, into account. The assault incident
occurred in
the course of the unlawful evictions and is thus closely linked to
the constitutional issue that was raised. The unlawful
evictions
taking place on the day in question therefore constitute a backdrop
which gives a slightly different hue to the run of
the mill delictual
claim of assault. This much was conceded by the court a quo in
paragraph 35 of its judgment. Although the appellant
was unsuccessful
in relation to the claim, the conduct of the first appellant in
relation to his unsuccessful claim ought to have
been considered in
its proper perspective. That context is this: the alleged assault
occurred in the course of the first respondent’s
execution of
unlawful demolitions. The following remarks of Sachs J in
Port
Elizabeth Municipality v Various Occupiers
,
[17]
in relation to s 26(3) of the Constitution
underscore the importance of having a roof over one’s head and
therefore shed some light on the desperation that unlawful
occupiers
may experience when faced with the possibility of losing their
shelter:
‘…
a
home is more than just a shelter from the elements. It is a zone of
personal intimacy and family security. Often, it will be the
only
relatively secure space of privacy and tranquillity in what (for poor
people, in particular) is a turbulent and hostile world.’
[18]
[31] That the context in
which an unsuccessful claim arose is a relevant consideration is
evident from the following remarks by
the court in
Hotz
& others v University of Cape Town
:
[19]
‘
Whilst the
applicants’ conduct went beyond the boundary of a peaceful
protest, the constitutional context should have been
taken into
account. It cannot be gainsaid that the issue they raised was of
genuine constitutional import. Although the applicants
were
unsuccessful, the Court should have considered the chilling effect
the costs order would have on the litigants, in the context
of
constitutional justice. The Court erred in not doing so.
It is correct that there
are exceptions to the general rule that in constitutional litigation
an unsuccessful litigant in proceedings
against the state ought not
to be mulcted with costs as they may have a chilling effect on them.
One of the exceptions, that justify
a departure from the general
rule, is where the litigation is frivolous or vexatious. Here, the
applicants’ opposition to
UCT’s application in the
High Court was clearly not frivolous or vexatious.’
[32]
The court a quo did not, in its judgment, specifically address itself
to the issue of costs. It advanced no reasons for deviating
from the
Biowatch
principle
in respect of the claim for compensation for destruction of property.
In relation to the assault claim, it did not take
context into
account. Had it done so, it would have applied the
Biowatch
principle. As stated before, an award of costs involves the exercise
of a discretion. In the absence of any reasons for making
an adverse
cost order, the ineluctable inference is that it did not exercise its
discretion at all. That constitutes a material
misdirection. That
being the case, this court is at large to substitute its own exercise
of discretion. To the extent that it may
be argued that the
sentiments expressed in the passage quoted from the court a quo’s
judgment evidence an exercise of its
discretion, then its discretion
was not exercised judicially as the circumstances of this matter do
not justify an adverse order
of costs. A failure to exercise a
discretion also amounts to a material misdirection entitling this
court to interfere.
[20]
[33]
In conclusion, I have shown above how the appellant’s claim for
compensation for destruction of his dwelling property,
which is a
claim raising constitutional issues, gave the claim for damages for
assault a different context to an ordinary delictual
claim, thus
warranting the application of the
Biowatch principle
. The same
reasoning I have applied to the award of costs by the court a quo is
equally applicable to the costs of the appeal. I
would therefore
uphold the appeal only in respect of the costs order and order each
party to pay its own costs in respect of the
appeal.
___________________
M B Molemela
Judge of Appeal
APPEARANCES:
For
Appellant: Adv de Vos SC (with Adv de Vos)
Instructed
by:
Seri
Law Clinic, Johannesburg
Webbers
Attorneys, Bloemfontein
For
Respondent: Adv Broster
Instructed
by:
Mchunu
Bulose & Partners, Durban
Moroka
Attorneys, Bloemfontein
[1]
15
Lawsa
3 ed at 228.
[2]
Ibid at 227. See
S
v Mogohlwane
[1982] 3 All SA 483 (T); 1982 (2) SA 587 (T).
[3]
Ibid.
[4]
Ibid at 228.
[5]
Biowatch
Trust v Registrar, Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) para
23.
[6]
Harrielall
v University of KwaZulu-Natal
[2017] ZACC 38
;
2018 (1) BCLR 12
(CC) para 11.
[7]
Lawyers
for Human Rights v Minister in the Presidency
[2016] ZACC 45
,
2017 (1) SA 645
(CC) para 18
[8]
Biowatch
supra fn 5 para 19.
[9]
Affordable
Medicines Trust & others v Minister of Health & others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) para
138.
[10]
Attorney-General
for Eastern Cape v Blom & others
1988 (4) SA 645
AD at 670D.
[11]
Head
of Department: Mpumalanga Department of Education v Hoerskool Ermelo
& another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) para
97.
[12]
Machele
& others v Mailula & another
[2009]
ZACC 7
;
2010 (2) SA 257
(CC) paras 26-27.
[13]
Zulu
& others v Ethekwini Municipality & others
[2014] ZACC 17; 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC).
[14]
Zulu
supra para 25; also see para 39.
[15]
Lawyers
for Human Rights v Minister in the Presidency & others
2017 (1) SA 645
CC para 7.
[16]
Ibid.
[17]
Port
Elizabeth Municipality v Various Occupiers
2005
(1) SA 217 (CC).
[18]
Port
Elizabeth
supra
para 17.
[19]
Hotz
& others v University of Cape Town
[2017] ZACC 10
;
2018 (1) SA 369
(CC) para 34-35.
[20]
Trencon
Construction Limited v Industrial Development Corporation of South
Africa Limited and Another
[2015]
ZACC 22
; 2015(5) SA 245 (CC);
2015 (10) BCLR 1199
(CC).