`
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
R EPORTABLE
Case number : 36/2004
In the matter between :
THE UNLAWFUL OCCUPIERS OF
THE SCHOOL SITE APPELLANT
and
THE CITY OF JOHANNESBURG RESPONDENT
CORAM : SCOTT, STREICHER, BRAND, LEWIS
JJA and MAYA AJA
HEARD : 24 FEBRUARY 2005
DELIVERED : 17 MARCH 2005
Summary: Application for eviction of the appellants under s 6 of Act 19 of
1998 (' PIE') –whether author ity to br ing application on behalf of th e
respondent had been establishe d – whether s 4(2) of PIE had been complied
with – whether order granted by the court a quo impossible to carry out.
_____________________________________________________
JUDGMENT
BRAND JA/
2
BRAND JA:
[1] This appeal has its origin in an application by the respondent
municipality ('the municipality') in the Johannesburg High Court for
the eviction of the appellants under the provisions of the
Prevention of Illegal Eviction From and Unlawful Occupation of
Land Act 19 of 1998 (PIE). In the court a quo the matter came
before Mlambo J who granted th e order sought. The appeal
against that order is with his leave.
[2] The municipality is the local authority responsible for the
greater Johannesburg area. Situated within that area is the
densely populated township of Alexandra. In London Road,
Alexandra there is a property zoned for schools and referred to as
the school site. It belongs to t he Province of Gauteng. On the
school site there are four schoo ls accommodating about 5 000
pupils. It is, however, also the site of an informal settlement
consisting of over 700 families. The appellants are part of that
community. It is not in dispute t hat they have no permission to be
on the site and that their occupation has always been unlawful.
[3] The informal settlement on t he school site st arted more than
20 years ago, before any schools had been erected on the site.
3
Later on, when the schools were built, there was, so it seems, still
enough room for everyone. Howe ver, as often happens with
settlements of this kind, it ke pt growing as more and more people
joined the community and erected their shacks wherever they
found a vacant spot. Eventually, th e shacks sprawled out onto the
playgrounds of the schools to the extent that the children had
virtually no place for recreation or play. What also happened was
that, because the shacks were bu ilt right up to the edge of roads
leading to the schools, children were compelled to walk in the road
itself and were knocked down by passing traffic. On occasion
children were also assaulted and molested while threading their
way through densely built up areas on their way to school. In the
end, both the municipality and the Province of Gauteng, as the
authority responsible for the schools and the owner of the property,
found the situation intolerable.
[4] At the same time, the office of the President took the
initiative in a project for the general upgrading of the Alexandra
township. For this project, officia lly referred to as the Alexandra
Renewal Project, R1,3 billion wa s set aside and it was publicly
launched by President Mbeki on 9 June 2001. Implementation of
the project required the 'de-densifi cation' of the township as a
4
whole and the consequ ent provision for al ternative housing in
other areas. To this end, formal houses built of brick and mortar
were set aside for the school site community in a developed area
called Bramfischerville which is situated in Roodepoort, some 37
kilometres from Alexandra. In the interest of the schools, the
Province of Gauteng ag reed to relax its stand ard qualifications for
the allocation of provincial housing subsidies and to make these
subsidies available essentially to every household on the school
site. For all practical purposes, the occupiers of the school site
were therefore offered the alternative of free formal housing in
Bramfischerville.
[5] To facilitate both the allocation of houses and the allotment
of housing subsidies, the municipality conducted a registration
process. Part of this process wa s to provide each shack on the
school site with a number. Heads of households were then
requested to have their particulars registered by municipal officials
with reference to their addresses th us established. In the end, the
heads of households occu pying 703 shacks, which constituted all
but a small number of the shacks on the site, were registered.
[6] The municipality and the provincial authority decided that the
relocation from the school site to Bramfischerville would take place
5
in December 2001. Over the preceding months the authorities
actively sought community agreement to the relocation. To this
end, a number of meetings were held with local civic organisations
where the relocation was discuss ed. In addition two public
meetings were arranged during Nove mber 2001. These meetings
were advertised through the distributi on of pamphlets. One of the
pamphlets was annexed to the m unicipality's founding papers.
Apart from advertising the date and place of public meetings, the
pamphlet gave details about the relocation process. It also
contained a succinct explanation why the relocation was thought
necessary.
[7] These attempts by the authorities at persuading the
community to relocate on a voluntary basis were largely
unsuccessful. As a result, the m unicipality found it necessary to
apply for an eviction order under PIE. Cited as respondents in the
application were the 703 heads of households occupying the
school site whose names and sh ack numbers appeared on the list
compiled during its registration process. Of those respondents,
590 gave notice of their intent ion to oppose. They are the
appellants in this matter; they w ere at all times represented by
counsel and attorneys, both in this court and in the court a quo.
6
[8] PIE provides for essentially two different types of eviction
applications, under s 4 and s 6 respectively. Both sections
presuppose that those to be evic ted are 'unlawful occupiers' as
defined in s 1. The difference is that under s 4 the applicant must
be 'the owner or person in charge' of the occ upied land while s 6
contemplates that the applicant is an organ of stat e, such as a
municipality, with jurisdiction over the area encompassing the
occupied land. In its application papers, the muni cipality made no
specific reference to s 6. At t he same time, however, it did not
claim to be the owner or person in charge of the school site. On
the contrary, its relationship with the property was plainly set out in
the founding affidavit. On these facts it was apparent that the
application could only be founded on s 6. That is how the matter
was understood and dealt with by everybody concern ed, both in
this court and in the court a quo.
[9] In the answering affidavits filed on behalf of the appellants, it
was formally admitted that the appe llants were 'unlawful occupiers'
of the school site as defined by s 1 of PIE and also that the school
site fell within the area of jurisdiction of the municipality. The first
two jurisdictional requirements of s 6 were therefore common
cause. With regard to the meri ts, the defence raised in the
7
answering papers turned largely on the further requirement in s
6(1), namely that an eviction order may only be granted if it is
considered by the court to be just and equitable in all the
circumstances.
[10] In the court a quo the appellant's central argument as to why
the eviction order sought would not be just and equitable was that
Bramfischerville was too far from the Alexandra area where many
of them were gainfully employed and where their children were at
school. The municipality did not deny that the relocation over a
distance of some 37 kilometres would be the cause of
inconvenience and, in many ca ses, even hardship to the
appellants. Its answer was that this could not be avoided since it
was simply impossible, both financia lly and practically, to find an
area for relocation closer to Alexandra. The court a quo devoted a
considerable part of its judgment to the weighing up of all the
arguments and counter arguments on the merits. In the end it
came to the well-reasoned conclusion that in all the circumstances,
it was in fact just and equitable, within the meaning of s 6 of PIE, to
grant the eviction order sought. This finding on the merits was not
challenged on appeal. We therefo re had to decide the matter on
the basis that the relocation of the appellants from the school site
8
to Bramfischerville would be in the public interest and that in all the
circumstances the eviction order would neither be unjust nor
inequitable.
[11] The three grounds raised in t he notice of appeal were all of a
technical or procedural nature, namely that:
(a) The municipality h ad failed to prove that the deponent to its
founding affidavit, Mr B M Lefatola, had the requisite
authority to institute the application on its behalf.
(b) The eviction application did not meet with the procedural
requirements of PIE.
(c) The order granted by the court a quo was not capable of
practical implementation.
[12] As to the issue giving rise to the first ground of appeal,
Lefatola's statement in the foundi ng affidavit was confined to the
following:
'I am duly authorised by delegated power to bring this application and to make
this affidavit on behalf of the applicant.'
The response to this statement in the answering affidavit was
equally bald. It read:
9
'I deny that … Lefatola is duly authoris ed to make the founding affidavit … or
to bring proceedings for eviction on be half of the applicant. The applicant is
put to the proof thereof.'
In reply, Lefatola produced a reso lution of the municipal council
which authorised him to launch proce edings of the present kind on
behalf of the municipality ' in consultation with the Executive
Director : Corporate Services or the Director : Legal Services'. (My
emphasis.) With reference to th is resolution Lefatola then stated
that:
'I have consulted with the applicants' Dir ector : Legal Services in respect of
this application.'
[13] Based on these facts the appellants raised the argument that
Lefatola had failed to prove that he had been duly authorised,
because he did not say whether or not the Director of Legal
Services agreed with him that t he application should be brought.
Support for this argument was sought in thos e cases where a
distinction had been drawn between 'in consultation with' and 'after
consultation with'. According to these authorities, a decision 'in
consultation with' another functi onary requires the concurrence of
that functionary while a decision 'after consultation with' another
functionary requires no more than that the decision must be taken
in good faith, after consulting and giving serious consideration to
10
the views of the other functionary (see eg Premier Western Cape v
President of the Republic of South Africa 1999 (3) SA 657 (CC)
para 85 note 94 and President of the Republic of South Africa and
others v South African Rugby Football Union and others 1999 (4)
SA 147 (CC) para 63)
[14] At the hearing of the ap peal, counsel fo r the appellants
conceded that she could not supp ort this ground of appeal. I think
the concession was fairly m ade. The issue raised had been
decided conclusively in the judgment of Flemming DJP in Eskom v
Soweto City Council 1992 (2) SA 703 (W), which was referred to
with approval by this court in Ganes and another v Telecom
Namibia Ltd 2004 (3) SA 615 (SCA) 624I-625 A. The import of the
judgment in Eskom is that the remedy of a respondent who wishes
to challenge the authority of a person allegedly acting on behalf of
the purported applicant, is pro vided for in rule 7(1). The ratio
decidendi appears from the following dicta (at 705D-H):
'The care displayed in the past about proof of authority was rational. It was
inspired by the fear that a person may deny that he was party to litigation
carried on in his name. His signature to the process, or when that does not
eventuate, formal proof of authority would avoid undue risk to the opposite
party, to the administration of justice and sometimes even to his own attorney.
…
11
The developed view, adopted in Court Ru le 7(1), is that the risk is
adequately managed on a different level. If the attorney is authorised to bring
the application on behalf of the applicant, the application necessarily is that of
the applicant. There is no need that any other person, whether he be a
witness or someone who becomes invo lved especially in the context of
authority, should addi tionally be authorised. It is therefore sufficient to know
whether or not the attorney acts with authority.
As to when and how the attorney's authority should be proved, the
Rule-maker made a policy decision. Per haps because the risk is minimal that
an attorney will act for a person without authority to do so, proof is dispensed
with except only if the other party challenges the authority. See Rule 7(1).'
And (at 706B-D):
'If then applicant had qualms about whether the 'interlocutory application' is
authorised by respondent, t hat authority had to be c hallenged on the level of
whether [the respondent's attorney] held empowerment. Apart from more
informal requests or enquiries, applicant's remedy was to use Court Rule 7(1).
It was not to hand up heads of argumen t, apply textual analysis and make
submissions about the adequa cy of the words used by a deponent about his
own authority.'
[15] These remarks by Flemming DJP must be understood
against the background that rule 7(1) in its present form was only
introduced by way of an am endment in 1987. Prior to the
amendment an attorney was obliged to file a power of attorney
whenever a summons was issued in an action, but not in motion
12
proceedings. The underlying reason for the distinction, so it was
said, was that in motion proceedings there is always an affidavit
signed by the applicant personally or by someone whose authority
appears from the papers (see eg Ex Parte De Villiers 1974 (2) SA
396 (NC)). On the basis of this reasoning it is readily
understandable why, before 1987, the challenge to authority could
only be directed at the adequacy of the averments in the
applicant's papers and pre-1987 de cisions regarding proof of
authority should be read in that light.
[16] However, as Flemming DJP has said, now that the new rule
7(1)-remedy is available, a party who wishes to raise the issue of
authority should not adopt t he procedure followed by the
appellants in this matter, ie by way of argument based on no more
than a textual analysis of the words used by a deponent in an
attempt to prove his or her own aut hority. This method invariably
resulted in a costly and wasteful investigation, which normally
leads to the conclusion that the application was indeed authorised.
After all, there is rarely any motivation for deliberately launching an
unauthorised application. In the present case, for example, the
respondent's challenge resulted in the filing of pages of resolutions
annexed to a supplementary affidavi t followed by lengthy technical
13
arguments on both sides. All this culminated in the following
question: Is it conceivable that an application of this magnitude
could have been launched on behalf of the municipality with the
knowledge of but against the advic e of its own director of legal
services? That question can, in my view, only be answered in the
negative.
[17] For their second ground of appeal, based on the contention
that the procedural req uirements of PIE were not met, appellants
relied on s 6(6) read with s 4(2) of the Act. Though the application
was brought under s 6, it was expressly rendered subject to the
procedural requirements of s 4 by the provisions of s 6(6). With
reference to the procedural requirements in s 4, the appellant's
objection primarily focussed on s 4(2) as interpreted by this court
in Cape Killarney Property Investments (Pty) Ltd v Mahamba 2001
(4) SA 1222 (SCA). According to this interpretation, s 4(2) requires
that, apart from the service of the eviction application prescribed
by the rules of court, an additional notice be served upon a
respondent at least fourteen day s before the date upon which the
application is to be heard. This notice, so it was held in Cape
Killarney Properties (at 1227G-H), must conform with the
previously obtained directions of the court, with reference to both
14
its contents and the manner in which it is to be served.
Furthermore, s 4(2) stipulates that this notice must be 'written and
effective' while s 4(5) provides that:
'The notice of proceedings contemplated in subsection (2) must –
(a) state that proceedings ar e being instituted in terms of subsection (1) for
an order for the eviction of the unlawful occupiers;
(b) indicate on what date and at what time the court will hear the
proceedings;
(c) set out the grounds for the proposed eviction; and
(d) state that the unlawful occupier is entitled to appear before the court
and defend the case and, where necessary, has the right to apply for
legal aid.'
[18] I revert to the fa cts pertaining to this issue. On 14 November
2001 the application papers were serv ed by the sheriff on those
respondents who were identified in his return with reference to
their names and the numbers of their shacks. Thereupon an
attorney, acting on behalf of 590 of the respondents (now the
appellants), gave notice of their intention to oppose. Answering
affidavits were filed on their behalf to which the municipality
responded in its replying affidavits.
15
[19] After all this, the municipality, in an obvious attempt to give
effect to the judgment of this court in Cape Killarney Properties ,
approached the court a quo for its prior approval of the contents of
the proposed s 4(2) notice which it intended to serve for directions
as to the manner in which this notice was to be served. On 20
March 2002 the court (Gautschi AJ) granted the following order:
(1) That the form and contents of the dra ft notice in terms of s 4(2) of [PIE]
annexed to the founding affidavit as 'X' be authorised by this court.
(2) The applicant is authorised and dire cted to serve the notice in terms
of s 4(2) of [PIE] on the res pondents occupying the shacks on the
school site, London Road, Alexandra by service at each shack as
follows:
2.1 by handing a copy thereof to any person found at that shack
and who is apparently over the age of 16 years; or
2.2 by affixing to the principal door of such shack; or
2.3 by sliding a copy thereof under the principal door of such
shack.'
Annexure X to the founding affidavit referred to in para 1 of the
order read as follows:
'BE PLEASED TO TAKE NOTICE THAT pr oceedings have been instituted in
terms of s 4(1) of [PIE], for the eviction of the above named Respondents.
TAKE NOTICE FURTHER THAT the hearing of such application will be heard
by the above named Honourable Court, situated at: Pritchard Street,
16
Johannesburg on Monday 8 April 2002 at 1 0h00 or so soon thereafter as the
matter may be heard.
TAKE NOTICE FURTHER THAT the evicti on application is based on the fact
that the Respondents are in unlawful occupation of properties surrounding
four schools situated in London Road, Alexandra and that the Applicant
requests an order of the Honourable Court to relocate the Respondents from
the School Site property to Bramfischerville.
TAKE NOTICE FURTHER THAT any Resp ondent is entitled to appear before
the court in order to defend the case, and if necessary, have the right to apply
for legal aid.'
[20] According to the return of service filed by the sheriff, s 4(2)
notices were served on 20 March 2002, in a manner prescribed by
the court order, on 587 respondent s who were identified in the
return with reference to their names and shack numbers. The
matter was then heard by the court on the date referred to in the
notice, ie 8 April 2002. The order eventually granted by Mlambo J
specifically provided that it w ould only apply to those respondents
who were:
(a) listed in the regis ter prepared by the m unicipal officials;
and
(b) served with copies of the application;
and
(c) served with copies of the s 4(2) notice.
17
[21] The appellants' objection to the contents of the notice and
the manner in which it was serv ed was threefold. First, that,
according to the notice, the application had been brought under s
4(1) of PIE whereas it was co mmon cause that it was brought
under s 6. Second, that the notice did not comply with s 4(5)(c)
since only one ground for the application was stated, namely that
the occupiers were in unlawful o ccupation of the land, whereas it
was obvious that the municipalit y relied on other grounds as well.
Third, that the notice was only in English and only conveyed in
written form while the overwhelming majority of the community
occupying the school site spoke one or other indigenous African
language and many of them were functionally illiterate.
[22] As to the first and seco nd objections pertaining to the
contents of the notice, it is cl ear that the referenc e to s 4(1) of PIE
was a mistake. To that extent the notice was therefore defective. I
am also in agreement with the contention that the grounds for the
application stated in the notice were too sparse to meet with the
requirements of s 4(5)(c). The res pondents should at least have
been told that their eviction was alleged to be in the public interest.
As the appellants also correctl y pointed out, it was held in Cape
Killarney Property (1227E-F) that the requirements of s 4(2) must
18
be regarded as peremptory. Nevertheless, it is clear from the
authorities that even where the form alities required by statute are
peremptory it is not every deviation from the literal prescription that
is fatal. Even in that event, the question remains whether, in spite
of the defects, the object of the statutory provision had been
achieved (see eg Nkisimane and others v S antam Insurance Co
Ltd 1978 (2) SA 430 (A) 433H-434B; Weenen Transitional Local
Council v Van Dyk 2002 (4) SA 653 (SCA) para 13).
[23] The purpose of s 4(2) is to afford the respondents in an
application under PIE an additional opportunity, apart from the
opportunity they have already had under the rules of court, to put
all the circumstances they allege to be relevant before the court
(see Cape Killarney Prop erty Investments 1229E-F). The two
subsections of s 4(5) that had not been complied with were (a) and
(c). The object of these two subsec tions is, in my view, to inform
the respondents of the basis upo n which the eviction order is
sought so as to enable them to meet that case. The question is
therefore whether, despite its defects , the s 4(2) notice had, in all
the circumstances, achieved that purpose. With reference to the
appellants who all opposed the appli cation and who were at all
times represented by counsel and attorneys, the s 4(2) notice had
19
obviously attained the legislature' s goal. However, there were also
respondents who did not oppose an d who might not have had the
benefit of legal representation. It is with regard to these
respondents that the question arises whether the s 4(2) notice had,
despite its deficiencies achieved its purpose. In considering this
question it must be borne in mind that, as a result of the way in
which the order of the court a quo was formulated, it will only affect
those respondents who had been serv ed by the sheriff with both
the application papers and the notice under s 4(2).
[24] The question whether in a partic ular case a deficient s 4(2)
notice achieved its purpose, cannot be considered in the abstract.
The answer must depend on what the respondents already knew.
The appellant's contention to the c ontrary cannot be sustained. It
would lead to results which are untenable. Take the example of a s
4(2) notice which failed to comply with s 4(5)(d) in that it did not
inform the respondents that they were entitled to defend a case or
of their right to legal aid. What would be the position if all this were
clearly spelt out in the application papers? Or if on the day of the
hearing the respondents appeared with their legal aid attorney?
Could it be suggested that in these circumstances the s 4(2)
should still be regarded as fatally defective? I think not. In this
20
case, both the municipality's caus e of action and the facts upon
which it relied appeared from the founding papers. The appellants
accepted that this is so. If no t, it would constitute a separate
defence. When the respondents recei ved the s 4(2) notice they
therefore already knew what case they had to meet. In these
circumstances it must, in my view , be held that, de spite its stated
defects, the s 4(2) notice served upon the respondents had
substantially complied with the requirements of s 4(5).
[25] This brings me to the appellant's further objection to the s
4(2) notice which raised the issues of language and literacy.
Support for this objection was sough t in the judgment of the Cape
High Court in Cape Killarney Property In vestments (Pty) Ltd v
Mahamba 2000 (2) SA 67 (C) where Hl ophe DJP held that, in the
circumstances of that case, w here the overwhelming majority of
the respondents were Xhosa speaking, a notice in the English
language unaccompanied by a Xhosa translation was not
'effective' within the meaning of s 4(2) (see 75C-76G). He also
held that, since a substantial proportion of the respondents were
illiterate, the notice should have been conveyed, in Xhosa, by a
loudhailer throughout the community (see 75C-G). In this court the
appeal was dismissed on other g rounds. It was therefore found
21
unnecessary to express any view on the correctness of these
findings (see Cape Killarney Properties Investments (Pty) Ltd v
Mahamba 2001 (4) SA 1222 (SCA) 1229F-G).
[26] As the factual foundation for the objection under
consideration the appellants relied on a supplementary affidavit
deposed to by Mr L L Monyela and filed on behalf of the appellants
subsequent to the filing of the municipality's replying affidavits.
After stating that he had been a member of the school site
community for 21 years and that he knew the community well,
Monyela alleged that 'the overwhelming majority of the members of
the community occupying the school site are people whose
primary language is an indigenous Af rican language' and that 'very
many of them do not speak or understand English well'. Moreover,
he alleged, 'many of the members of the community are
functionally illiterate and would not be able to read and understand
a document such as [the s 4(2) notice].
[27] However, in a replying affidavit filed on behalf of the
municipality it was said that:
'Past experience has taught us that the news of an applicat ion such as the
present one spreads like wildfire in a high density informal settlement such as
the one to which this application relates. I can confidently st ate that the fact
22
that this application is pending, is well known amon gst all the residents in
question.'
Neither Monyela nor anyone else re sponded to these statements
which therefore stand uncontradicted.
[28] It is obviously desirable th at, where practicable, the s 4(2)
notice should be in a language and through a medium of
communication which is most likely to be understood by its
intended audience. In the view that I hold on this issue, it is not
necessary for me to decide whether, in the circumstances of this
case, it would be practicable to translate the notice into the
unknown number of languages allege dly spoken by the members
of the school site community. The question whether a s 4(2) notice
was effective is not a question of la w. It is a question of fact. More
often than not it would only be capable of determination after the
event. It follows that the question whether a notice in one language
is sufficient or whether it should be translated into a number of
languages is likewise a question of fact to which there can be no
answer of general validity. It can only be answered, often with the
benefit of hindsight, with reference to the facts of that particular
case.
23
[29] According to the uncontradicted evidence presented by the
municipality in this case, the pending application was well known
amongst all the occupiers of the school site. In the light of that
evidence, Monyela's affidavit rai sed more questions than answers.
Why did he not dispute or even qualif y the positive statement on
behalf of the municipality that the respondents were aware of the
pending application? Why did he res ort to generalities and to a
statement in guarded terms that many of the members of the
community did not understand English well? Why is there no
reference to a single respondent who indicated that he or she was
unable to understand the notice?
[30] We know that the applic ation had been preceded by a widely
publicised campaign in which the prospect of relocation was the
central issue. With the benefit of hindsight, we also know that the
application was opposed by a substantial number of the
respondents and that this oppositio n was coordinated to a large
extent by the local area committee of the National Civics
Organisation of which Monyela was the chairperson. In this light,
the overwhelming probabilities seem to indicate that all the
occupants of the school site w ould have been approached to join
the local area committee in its oppos ition. In the circumstances I
24
agree with the court a quo's finding that the s 4(2) notice was
effective.
[31] This brings me to the th ird ground of appeal based on the
contention that the order issued by the court a quo would be
impossible to carry out. There is no merit in this contention.
Though the implementation of the court order may be difficult, I
cannot see why it would be impossible.
[32] It follows that the appeal cannot succeed. The municipality
did not ask for its costs of appeal. There will accordingly be no
order as to costs.
[33] The appeal is dismissed.
……………….
F D J BRAND
JUDGE OF APPEAL
Concur:
Scott JA
Streicher JA
Lewis JA
Maya AJA