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[2016] ZACC 52
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Snyders and Others v De Jager (Interim Relief) (CCT186/15) [2016] ZACC 52; 2017 (5) BCLR 585 (CC) (21 December 2016)
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 186/15
In the matter
between:
KAREL
SNYDERS
First
Applicant
SOFIA
SNYDERS
Second
Applicant
MINOR
CHILDREN
Third
Applicant
and
LOUISA FREDERIKA
DE
JAGER
Respondent
Neutral citation:
Snyders and Others v de Jager
[2016] ZACC 52
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Nkabinde J, Van der
Westhuizen J
and Zondo J
Judgments:
Zondo J (majority): [1] to [34]
Cameron J
(dissenting): [35] to [53]
Hearing:
Matter
decided without oral hearing
Order handed
down:
16 October 2015
Reasons for
order:
21 December 2016
Summary:
Interim
relief pending outcome of appeal — restoration of peaceful
possession of property —
Extension of Security of Tenure Act,
1997
— ESTA — test for interim relief —
availability of alternative accommodation for new occupant of
property —
punitive costs order granted
JUDGMENT
ZONDO J (Mogoeng CJ,
Moseneke DCJ, Jafta J, Khampepe J, Madlanga J and Nkabinde J
concurring):
Introduction
[1]
On 16 October 2015 this Court granted the following order in
favour of the applicants:
“
(1) Pending the outcome
of the applicants’ application for leave to appeal to this
Court against the judgment of the Supreme
Court of Appeal and or
judgment of the Land Claims Court and or of the Magistrate’s
Court in this case:
(a)
The respondent is ordered to take all the necessary steps to restore
to the applicants on or before Tuesday, 20 October 2015
peaceful
possession of the dwelling which they occupied before 1 October 2015.
(b)
The issue of costs is reserved.”
This order was
granted by the majority of this Court which comprised Mogoeng CJ,
Moseneke DCJ, Jafta J, Khampepe J, Madlanga J,
Nkabinde J and
myself. Cameron J and Van der Westhuizen J did not agree that
this order should be granted. Their view
was that the
applicants’ application for urgent interim relief should be
dismissed. We indicated then that we would
provide the reasons
for the order when the application for leave to appeal was disposed
of. These are they.
Brief background
[2]
In 2009 there was a dispute between Mr Karel Snyders, the
first applicant, on the one hand, and Ms de Jager, the respondent, on
the other, concerning whether the applicants were entitled to
continue to occupy a certain house on a farm managed by the
respondent.
The farm is owned by Mr F J Stassen. The farm
is in Voorbaat, Ladismith, Western Cape. I shall refer to the
farm as
the “Stassen Farm” and to the house simply as
“the house”. The Snyders family had been living in
that house continuously since 1992. This means that they had
been living in the house for about 17 years. Mr Snyders
had
been employed on the Stassen Farm since 1992. His contract of
employment was terminated on 18 April 2008 by Ms de Jager.
After the termination of Mr Snyders’ contract of employment, Ms
de Jager did not take any steps until 2009 to get Mr Snyders
and his
family to vacate the house or to leave the farm. He and his
family continued to live in the house.
[3]
In 2009 Ms de Jager applied to the Magistrate’s Court,
Ladismith, for an eviction order against Mr Snyders, his wife and his
minor children. Mr Snyders and his family opposed the
application. On 14 November 2012 the Magistrate’s Court
granted an eviction order against the applicants. The order was
in the following terms (my own translation from Afrikaans
to
English):
“
The Honourable Court
finds:
1. That it is just and equitable
that the 1st Respondent (and his family) vacate the premises at:
Voorbaat Farm as described in
the application on or before 20 December 2012; and
2. In the event that the
defendant (and his family) fails to vacate the premises, the Sheriff
of the above Honourable Court may
execute the order on or before
12h00 on the 31st December 2012.
3. The execution of this order
is suspended pending the automatic review by the Land Claims
Court.”
[1]
[4]
Note must be taken of the fact that in terms of this eviction
order the applicants were given six or seven weeks before the Sheriff
could execute the order. Executing the order would be the
eviction of Mr Snyders and his family from the house if they did
not
vacate it on or before 20 December 2012. The Magistrate’s
Court referred the eviction order to the Land Claims
Court in terms
of
section 19(3)
of the
Extension of Security of Tenure Act (ESTA
)
[2]
for automatic review. The Land Claims Court considered the
Magistrate’s Court’s eviction order in automatic review
proceedings and confirmed it.
[5]
The applicants applied to the Land Claims Court for leave to
appeal to the Supreme Court of Appeal. The Land Claims Court
granted them the required leave. The appeal was heard by the
Supreme Court of Appeal on 15 September 2015.
On
30 September 2015 that Court handed down its judgment. Its
judgment was to the effect that the applicants had appealed
to a
wrong court as they should have appealed to the Land Claims Court.
The order made by the Supreme Court of Appeal was
to strike the
matter off the roll with costs.
[6]
On 1 October 2015 – that is the day after the Supreme
Court of Appeal had handed down its judgment – without any
notice
to Mr Snyders and his family and while they were not at home,
Ms de Jager caused the Sheriff to evict the Snyders family from the
house. Their belongings were thrown into the street. Ms
de Jager has not advanced any reason why she did not give Mr
Snyders
and his family the notice that obviously the Magistrate’s
Court’s eviction order contemplated would be required
before
the Sheriff could evict them. That would have been about six
weeks’ notice. She would have been aware
of that period
of about six weeks that the Magistrate’s Court’s order
had sought to give the Snyders family.
[7]
It is difficult to think that Ms de Jager did not discuss her
plan with her attorneys. The plan to which I refer is Ms de
Jager’s plan to rush to evict the Snyders family so quickly
after the Supreme Court of Appeal judgment and without any notice
whatsoever to them. In all probability, the Sheriff would have
been instructed by Ms de Jager’s attorneys to evict
the
Snyders family on 1 October 2015. It would be most
disappointing if any attorney was party to Ms de Jager’s plan
to treat other human beings so badly and in such a demeaning manner.
[8]
Ms de Jager and her attorneys knew that Mr Snyders and his
family were represented by an attorney. The obviously decent
thing
to do for anybody in Ms de Jager’s position or
in the position of her attorneys was for them to contact Mr Snyders’
attorney and indicate that they contemplated having the Snyders
family evicted so that there could be a discussion of how that
could
be done in as humane a manner as possible. One would have
thought that, at least at a professional level, Ms de
Jager’s
attorneys had an obligation to give notice to Mr Snyders’
attorneys of their client’s plan to evict the
Snyders family on
1 October 2015. It is strange that they did not do
so.
[9]
Ms de Jager was not without a remedy if she wanted to execute
the eviction order while an appeal, either to the Land Claims Court
or to this Court, was pending. She could approach the relevant
court for leave to execute the order in the meantime and,
if she put
up a convincing case, the court could well have granted her the
requisite leave. Whether or not she would be able
to put up a
convincing case is another matter.
[10]
I said earlier that, when the Sheriff came to the house, Mr
Snyders and his family were not at home. After Mr Snyders’
and his family’s belongings had been thrown out of the house,
Ms de Jager told Mr Willem Breda to move into the house.
That
same day Mr Breda moved into the house with his family. That
was on 1 October 2015.
[11]
Mr Snyders’ attorney sent an email to Ms de Jager’s
attorney at about 14h33 in which he informed her that he had been
instructed to apply to this Court for leave to appeal against the
decision of the Supreme Court of Appeal. In the email he
also
said that apparently the Sheriff intended evicting his client on that
day. He asked Ms de Jager’s attorney
to
instruct the Sheriff not to go ahead with the eviction as the
application for leave to appeal would suspend the operation of
the
decision of the Supreme Court of Appeal.
[12]
It seems that by 15h29 Mr Snyders’ attorney had not
received a reply from Ms de Jager’s attorney. Mr
Snyders’
attorney sent off another email to Ms de Jager’s
attorney at 15h29. In it he said that, according to his client,
the
South African Police Service (SAPS) were busy throwing his
client’s belongings out of the house. He informed Ms de
Jager’s attorney once again that he had been instructed to
appeal to this Court and the application for leave to appeal would
be
lodged in the course of the following week. He appealed to Ms
de Jager’s attorneys to instruct the SAPS not to continue
with
what they were doing. He placed on record that Ms de Jager’s
attorneys had not given any notice to him or his
client of the
intention to evict Mr Snyders and, as a result, he and Mr Snyders
could not have arranged alternative accommodation.
Mr Snyders’
attorney also pointed out that he reserved his client’s right
to seek costs
de bonis propriis
against Ms de Jager’s
attorney.
[13]
At 15h47 Ms de Jager’s attorney replied to the
correspondence from Mr Snyders’ attorney. She said
that she
had received his fax at 15h20. She also informed Mr
Snyders’ attorney that it was not the SAPS but the Sheriff who
had evicted Mr Snyders and his family. She pointed out that the
eviction had started and finished in the morning. Ms
de Jager’s
attorney was not of any help with regard to Mr Snyders’
attorney’s problem.
[14]
At 15h56 Mr Snyders’ attorney once again sent another
email to Ms de Jager’s attorneys asking them to reverse the
eviction
but reserving his client’s right to place the emails
before the Court in support of a special order of costs. He
sent
another email again at 16h01 pointing out that the period within
which his client was entitled to appeal had not lapsed and, that,
therefore, his client’s eviction was unlawful and
unconstitutional. He said that Ms de Jager’s attorneys’
conduct provided good grounds for an order of costs
de bonis
propriis
.
[15]
When Mr Snyders and his family returned to the house, they
found that their belongings had been thrown into the street and they
were not permitted to continue to occupy the house. They took
their belongings and went to a neighbouring farmer, told him
what had
happened and asked if he could give them shelter for the time being.
The farmer, a Mr Rabe, gave them a shed that
was used to store goods
to use for the time being.
[16]
Mr Snyders said that the shed had goods in and he and his
family also put their belongings in the shed. He pointed out
that,
as a family, they all used the balance of the space to live,
cook, eat and sleep. In other words the shed served as their
kitchen, lounge, dining room and bedroom. He complained that
the space was too small for the whole family. He also
stated
that he and his wife had no privacy as husband and wife as they
shared the space with their children and a grandchild.
Mr
Snyders urged the Court to grant him and his family interim relief
pending the determination of his application for leave to
appeal.
The interim relief he sought for himself and his family was the
restoration to him and his family of the peaceful
possession of the
house.
[17]
Ms de Jager opposed the application for interim relief.
In support of her opposition, she pointed out that Mr Breda was by
then occupying the house with his family with effect from 1 October
2015. Ms de Jager said that Mr Breda had been occupying
the
“
saaltjie
”
[3]
for about a year prior to moving into the house. She said that
she could not ask Mr Breda to move back into the “
saaltjie
”
because the “
saaltjie
” was not fit for human
habitation. She said this despite the fact that Mr Breda
and his family had just moved
out of the “
saaltjie
”
after staying there for about a year.
[18]
Ms de Jager pointed out that the Bredas had an 18 month old
child who was ill and had even had to be admitted to hospital in the
previous three weeks or so. She said that the “
saaltjie
”
had no sanitation, no running water and had cracks in the wall and
that a sick child could not stay in the “
saaltjie
”.
Mr Snyders said that, since 1992 when he started living on the
Stassen Farm, there had always been people who lived
in the
“
saaltjie
” and, therefore, Mr Breda should go back
to the “
saaltjie
” so that he and his family could
move back into the house.
[19]
Mr Snyders pointed out in one of his affidavits that there
were four labourers’ houses on the farm. He said that one
Kobus
[4]
occupied the first one together with the Stoffels family. He
said that one Andries
[5]
occupied the second house. He said that the third house was the
one he had occupied before. He then said that the fourth
house
was vacant and available for occupation by other workers.
[20]
In a later affidavit that Ms de Jager filed in support of her
opposition to an application for contempt of court, she referred to
a
wendy house which she said was vacant and said that Mr Snyders and
his family were welcome to use. She said that the wendy
house
provided proper accommodation. Very strangely, she did not
offer it to Mr Breda and his family so that Mr Breda and
his family
could move out of the house previously occupied by Mr Snyders and his
family so that the latter family could move back
into the house.
[21]
The above facts, therefore, reveal that at the time that this
Court had to consider whether or not to grant Mr Snyders and his
family
interim relief, the position was as follows—
(a) the house which the Snyders family previously occupied was
occupied by the Breda family who had been permitted by Ms de Jager
to
occupy it.
(b) the “
saaltjie
” was vacant and there had always
been someone occupying the “
saaltjie
” at any one
point in time since Mr Snyders started working on the Stassen Farm in
1992.
(c) although it is true that Mr Breda’
s 18
month old child was
sick, he or she had lived with his or her own parents in the
“
saaltjie
” for about a year before moving into the
house during which period the condition of the “
saaltjie
”
had not caused her to be sick.
(d) there was a vacant wendy house available for use which Ms de
Jager could have made available to Mr Breda and his family so
as to
make way for Mr Snyders and his family to move back into the house.
(e) Ms de Jager had not offered Mr Breda and his family the use of
the wendy house or the vacant house which was available.
[22]
In these circumstances we were satisfied that Mr Snyders and
his family had satisfied the test for interim relief.
[6]
If they had not shown a clear right, they had, to say the least,
shown a
prima facie
right to relief. In support of this,
I refer to the reasons given in the judgment relating to the
application for leave to
appeal. That judgment is being handed
down at the same time as this judgment. Mr Snyders and his
family had been evicted
from a house that had been their home for
about 17 years without any notice. They were without any
alternative accommodation
of their own. They were living in a
goods shed that was too small. The fact that Ms de Jager had a
vacant house into
which she could move Mr Breda and his family meant
that the balance of convenience favoured the grant of interim relief
rather
than its refusal. There was no other satisfactory remedy
available to Mr Snyders and his family.
[23]
I have had the opportunity of reading the judgment by my
Colleague, Cameron J (second interim relief judgment). The
second
interim relief judgment is founded on the proposition that the
interim order that was granted by the majority last year in this
matter authorised and directed Ms de Jager to evict Mr Breda and his
family from the dwelling that had previously been occupied
by Mr
Snyders and his family. This interpretation of the interim
order is incorrect. To evict somebody means forcing
someone out
of a house or property against his or her will. That is only
lawful when it is done when there is a court order
authorising the
eviction of that person. However, that is not the only way in
which a house or property may be vacated. The
owner of a
property and the occupant or lessee may reach an agreement in terms
of which the lessee or occupier or occupant may
vacate the house or
property. Indeed, it is normal that the property owner will first
talk to or even negotiate with the occupant
or lessee to achieve an
agreement in terms of which the occupant or lessee would vacate the
property on some agreed date.
When the discussion or
negotiations fail to produce an agreement, the property owner then
approaches the courts for an eviction
order.
[24]
It will be seen that the interim order did not have the word
“evict” or “eviction”. It required Ms
de Jager to take all the necessary steps to restore to Mr Snyders
and his family the peaceful possession of the dwelling occupied
by
Mr Breda and his family. The second interim relief
judgment seems to imply that the wording of the interim order
necessarily meant that Ms de Jager had to forcefully move Mr Breda
and his family out of the dwelling without an order of court
which
would have been unlawful and unconstitutional. That
interpretation of the order is not justified by the wording of
the
interim order. An order of court must be given an
interpretation that is in conformity with the Constitution and the
law if there are two interpretations and one is inconsistent with the
Constitution and the law while the other one is consistent
with the
Constitution and the law. The reference to “all the
necessary steps” in the order is a reference to
all lawful
necessary steps. The second interim relief judgment seems to
imply that the interim order required Ms de Jager
to take even
unlawful steps. That reading of the interim order has no basis
whatsoever.
[25]
The interim order meant that Ms de Jager would talk to Mr
Breda, explain the situation to him and ask him to move out of the
dwelling
and make such other arrangements as the two could agree
upon. This could have entailed that Ms de Jager made the wendy
house
available to Mr Breda as I say elsewhere in this judgment. The
interim order meant that, if Mr Breda did not agree to vacate
the
dwelling, Ms de Jager could apply to court for an eviction
order against Mr Breda and his family. The interim
order did
not authorise the Sheriff to evict Mr Breda because it was accepted
that Ms de Jager would have had to obtain an eviction
order if Mr
Breda did not co operate. However, since Mr Breda had come
into the dwelling by agreement with Ms de Jager,
it was expected that
he would co-operate with Ms de Jager. Unfortunately, he did not.
[26]
Interestingly, the parties also understood the interim order
to mean that, if Mr Breda did not agree to vacate the dwelling,
Ms de Jager’s next step would be to institute eviction
proceedings against Mr Breda. It was not their understanding
that the order required Ms de Jager to evict Mr Breda and his family
without a further court order authorising his eviction. Ms
de
Jager says in her affidavit that she did think about instituting
eviction proceedings against Mr Breda and his family but the
reason
why she did not pursue that route was that she thought that there
were no reasonable prospects of success. Mr Snyders
or his
attorney says in his affidavit that Ms de Jager should have
instituted eviction proceedings against Mr Breda and his
family
and her failure to take that step meant that she was guilty of
contempt of court.
[27]
From what I have said above it will be seen that, contrary to
the view expressed in the second interim relief judgment, there is
a
long distance between the interim order and a disregard of section
26(3) of the Constitution. The Court that would consider
all
the relevant circumstances referred to in section 26(3) is the Court
that Ms de Jager would have approached for an eviction
order
against Mr Breda and his family. The second interim relief
judgment also criticises the majority on the basis that
the interim
order was granted without hearing Mr Breda and without joining him.
Once again, the second interim judgment misconstrues
the position.
Mr Breda was going to be heard by a court that would be asked to
grant an eviction order against him.
The interim order was not
an eviction order and it did not entail that Ms de Jager should
forcefully move Mr Breda and his family
out of the house. At
that stage this Court did not need to hear Mr Breda or to have him
joined in the proceedings because
this Court did not contemplate
making an eviction order against him or any order against him at all.
[28]
The second interim judgment quotes a passage from my joinder
judgment and says that the interim order did exactly what the joinder
judgment says cannot and should not ever be done. Once again,
the second interim relief judgment misconstrues the interim
order.
I think that the second interim judgment misunderstands what is
contemplated in that passage by the reference to “an
order
which either directly or indirectly requires someone to be evicted”.
As I have said, the interim order did not
contemplate the eviction of
Mr Breda and his family either directly or indirectly. It
contemplated that there would be eviction
proceedings against him if
he refused to vacate the dwelling when approached by Ms de Jager.
[29]
The second interim relief judgment criticises Mr Snyders and
his attorney a lot on the basis that they should have communicated
with Ms de Jager’s attorneys on the day that the Supreme Court
of Appeal handed down its judgment (that is 30 September
2015)
or the following morning and told them that Mr Snyders intended to
appeal to this Court against the decision of the Supreme
Court of
Appeal. It is implied that this was so as to avoid the
demeaning manner in which Mr Snyders and his family were
kicked out
of the house by Ms de Jager and the Sheriff. It is not clear
how it is thought that Mr Snyders and his attorney
would have
predicted that Ms de Jager would choose not to give Mr
Snyders and his family any notice at all that she intended
to evict
them.
[30]
The demeaning manner in which Ms de Jager treated Mr Snyders
and his family on 1 October 2015 – opening the house in their
absence, giving them no notice and throwing their belongings out into
the street deserves to be condemned in the strongest possible
terms
by all. It is to be noted that the second interim judgment does not
anywhere criticise Ms de Jager’s unacceptable conduct
and the
conduct of the Sheriff in this regard.
[31]
The way in which Ms de Jager treated Mr Snyders and his family
on the day she evicted them was reminiscent of the evictions under
apartheid.
Reserved costs
[32]
In the interim order that we granted we reserved costs.
We are of the view that Ms de Jager should be ordered to pay costs
on
the scale as between attorney and client. Mr Snyders’
attorney gave a warning in the emails he sent to Ms de Jager’s
attorney that he reserved his client’s right to place the
emails before the court so as to seek a special order of costs.
The need for Mr Snyders and his family to approach this Court for
interim relief arose out of the fact that Ms de Jager caused
Mr
Snyders and his family to be evicted before the litigation could
reach its end. Ms de Jager knew that the Magistrate’s
Court’s order contemplated that Mr Snyders and his family would
be given about six weeks before the Sheriff could be asked
to evict
them and yet she chose not to give them any notice at all. Ms
de Jager caused the belongings of the Snyders family
to be thrown out
of the house. In seeking to evict the Snyders family, Ms de
Jager failed to instruct her attorneys to notify
Mr Snyders’
attorney of her intention.
[33]
Immediately after the belongings of the Snyders family had
been thrown out of the house, Ms de Jager caused Mr Breda and his
family
to move into the house when there was a vacant house which she
could have given to the Bredas to use so that the house would become
vacant for the Snyders to move back into. Ms de Jager treated Mr
Snyders and his family in a demeaning manner. As a mark
of its
disapproval for Ms de Jager’s conduct, this Court should order
that she pay the costs of this application on a scale
as between
attorney and client.
[34]
In the circumstances I conclude that there was proper
justification for the grant of the interim relief. In the
result Ms
de Jager is ordered to pay the applicants’ costs of
this application on the scale as between attorney and client.
CAMERON J (Van
der Westhuizen J concurring):
[35]
What this Court did in this case was truly extraordinary.
After a protracted dispute between the first applicant, Mr Karel
Snyders, and the respondent, Ms de Jager, the manager of a
farm where Mr Snyders had been employed, he and his family
were
evicted from their home on the farm on the afternoon of Thursday,
1 October 2015. That was after the Magistrate’s
Court had ordered their eviction on 14 November 2012, which
the Land Claims Court (LCC) confirmed on 13 February 2013.
[7]
[36]
When Mr Snyders next sought to appeal to the Supreme Court of
Appeal (SCA), with the leave of the LCC, the SCA resolved a matter
that had been much in doubt amongst practitioners and judges, and on
which conflicting decisions had been given.
[8]
Does an appeal lie to the SCA against an order of the LCC merely
confirming an order of eviction granted by a Magistrate’s
Court? Or must the eviction order, as confirmed, first be
appealed to the LCC itself, after which a further appeal lies to
the
SCA? The SCA endorsed the second approach. It held that
no appeal lay against the confirmation order: the eviction
order,
despite being confirmed by the LCC, must itself first be appealed to
the LCC. The accompanying judgment of this Court,
in which I
concur, holds otherwise.
[9]
It finds that an appeal lies against the LCC confirmation order.
[10]
But, when the SCA judgment was handed down on 30 September 2015,
it was the first authoritative determination of
the point. The
consequence of the SCA’s finding on appealability was that it
struck Mr Snyders’ application from
its roll. Mr Snyders,
if he wished to appeal, had first to return to the LCC to challenge
the Magistrate’s eviction
order there.
[37]
The SCA delivered its judgment on the morning of Wednesday,
30 September 2015. The next morning, with the help of
the Sheriff of the Court, the eviction was carried out. Mr
Snyders and his family were cast from their home. At 14h33
on
1 October 2015, Mr Snyders’ attorney sprang into action.
In an email sent at that time to Ms de Jager’s
attorney, he recorded that he had just (“
so pas
”)
received instructions to note an appeal to the Constitutional Court.
The application would be delivered in the course
of the following
week.
[38]
The main judgment singles out Ms de Jager and her attorneys
and faults them for not notifying Mr Snyders’ attorney of
the impending eviction.
[11]
That’s not fair. Both sides can be faulted. This
includes Ms de Jager, whose handling of the eviction was
harsh and
perhaps precipitate. As she however later pointed out, “[t]he
whole sequence of events could have been prevented
if Mr van der
Merwe [Mr Snyders’ attorney] immediately on receipt of the
judgment of the SCA telephoned my attorney in an
effort to make an
arrangement that the execution of the Magistrate’s eviction
order be held in abeyance”.
[39]
Both parties could have avoided the later events if they had
notified the other of their intent in the immediate aftermath of the
SCA’s decision. As events occurred, Mr Snyders’
attorney failed to promptly contact Ms de Jager’s
attorney to say that further proceedings were or might be envisaged.
He chose to send an email, more than 28 hours after
the SCA judgment
was handed down. Given the long, acrimonious dispute –
exacerbated by his own rancorous and litigious
approach throughout
the proceedings – that was obviously imprudent.
[40]
The first Ms de Jager’s attorney heard of the further
proceedings was when she, the attorney, saw the email at 15h20.
[12]
By then, it was too late.
[13]
The Snyders were out. Incensed, their attorney brought an
urgent application before this Court. He sought an
interim
order restoring the Snyders family to occupation of their dwelling.
So obtrusive was his interposition of himself
into the litigation
that he omitted to append confirmatory affidavits from his clients, a
lapse he was later obliged to remedy.
[41]
Unfortunately, the Court found itself drawn into this
imbroglio. In the eviction judgment, this Court finds that the
Snyders
family should not have been evicted. The statutory
requirements had not been fulfilled and the Magistrate’s Court’s
eviction order was wrong.
[14]
But that was not the question before us then. The Court was
asked to issue an immediate order –
before
we had
considered the appealability question, and
before
we
considered whether, if the LCC confirmation order was appealable, the
eviction was justly ordered. On that question, we
then had only
a few sparse facts available to us.
[42]
The application for an urgent interim order was filed on 5
October 2015. On 9 October 2015, Ms de Jager lodged a
notice
of intention to oppose. Three days later, on 12 October
2015, this Court issued directions inviting Ms de Jager to file
a
response to the urgent application. The directions were issued
at 15h36 on Monday, 12 October 2015. Ms de Jager
was given
until the next day to do so – 13 October 2015.
She did so. Three days later, on 16 October
2015, this Court
issued an interim order, over two dissenting votes. Though the
main judgment sets it out, it is worth recording
its main portion
here, too. Reserving costs, it ordered Ms de Jager, pending
consideration of leave to appeal—
“to take all the necessary steps to restore to the applicants
on or before Tuesday, 20 October 2015 peaceful possession
of the
dwelling which they occupied before 1 October 2015”.
[43]
What is extraordinary about this order? Well, first, the
distance between it and disregard of section 26(3) of the
Constitution,
as embodied in ESTA, if any, is paper-thin.
Section 26(3) provides that no one may be evicted from their home
without an
order of court made
after considering all the relevant
circumstances
.
[15]
Presumably “relevant circumstances” includes the
circumstances of anyone directly affected by an eviction order.
How could it not?
[44]
When it required of Ms de Jager that she take “all the
necessary steps” to restore the Snyders family to their
dwelling
on the farm, this Court knew that the dwelling wasn’t
empty. It was occupied. When the Snyders family was
evicted,
Ms de Jager’s employee, Mr Breda, moved into the
house they had occupied. He did so with his family. More
particularly, even, the Court also knew, since Ms de Jager
told us, that the Bredas’ three minor children were
part of the
family that moved in – and that the youngest child, then 18
months old, was “rather ill and [had] been
hospitalised twice
during the last three weeks”.
[45]
Despite this admonition, the Court required Ms de Jager to
take “to take all the necessary steps” – not all
reasonable
steps; all
necessary
steps – to
restore the Snyders family to the dwelling. All this, within
four short days. The imperative, disregardful
ring to the
injunction is unavoidable. It seemed to mean ensuring, by one
means or another, that the Bredas got out of their
home.
Without a hearing. Without process. Without consideration
of their circumstances. The short time
frame the interim order
granted accentuated the menace implicit in the injunction “to
take all the necessary steps”.
This wording did not, as
the main judgment suggests, imply its limitation. It implied
the opposite.
[46]
The Bredas were never given the opportunity to place their
section 26(3) “circumstances” before this Court.
The
first we heard from them on this was in April 2016, six
months after the Court issued the interim order affecting them.
[16]
They were denied both the human consideration and the legal necessity
of being heard and seen and considered (
audi alteram partem
)
that having their circumstances considered “relevant”
entailed. The failure to afford the Bredas this opportunity
meant that this Court was not in a position to consider “all
the relevant circumstances” when granting the order.
[47]
In effect, the Court granted the Snyders family a spoliation
order, letting them back into their former home, as though the Breda
family were invisible. As though they did not exist. The
Bredas were given a chance only later. In the joinder
judgment,
in which I concur, the Court says that in eviction—
“a court may not competently make an order that either directly
or indirectly requires someone to be evicted without that
person
having been joined in the proceedings and heard. To do
otherwise would mean that a court may in effect directly or
indirectly order someone’s eviction without the person having
been given an opportunity to be heard. Indeed, that would
mean
that the court would be making an eviction order against someone
without it having heard from that person in regard to all
his or her
circumstances that the court is enjoined by section 26(3) of the
Constitution to consider.”
[17]
[48]
Well, quite. The interim order did exactly what the
joinder judgment says cannot and should not ever be done. It
required
Ms de Jager to ensure the Bredas left their home without
their having been heard and given an opportunity to place their
circumstances
before the Court. So clearly did the order mean
this – that the Bredas should be made to move without ado –
that
Mr Snyders’ attorney brought proceedings for contempt
against Ms de Jager when she failed to promptly oblige. Her
protestations
that she repeatedly instructed Mr Breda to leave, with
the later help of the Sheriff, and that he refused each time to do
so, in
part precisely because of his ailing child, made no
impression.
[18]
[49]
The contempt proceedings the attorney insisted on bringing
were thoroughly ill-conceived. The Court in an accompanying
judgment,
in which I also concur, rightly concludes that Ms de Jager
was not guilty of contempt.
[19]
Not nearly, I would add. The attorney should in my view pay the
costs of those proceedings from his own pocket.
[50]
It is possible to go on like this. And to cite the
floribundant declarations, appearing lavishly throughout this Court’s
evictions jurisprudence, whose spirit and letter the interim order
violated. But enough. The interim order should never
have
been granted. It was wrong then, and it is still wrong now.
[51]
This is particularly so since this Court is ill-suited to hear
urgent applications.
[20]
It is “not designed to act in matters of extreme urgency”
– particularly during recess, when its members
“disperse
to their homes”
[21]
and are not gathered together for ease of reflective discussion and
deliberation.
[52]
The eviction appeal should have wended its way, exactly as it
did, through the cumbersome and frustrating processes of the law.
Ms de Jager should have had the chance to explain, exactly as she
did, why the Snyders family was evicted as it was, and why
accusations
that she acted in bad faith, then or later, were
misconceived. The Snyders family should have had a chance,
exactly as they
have, to show that the SCA’s interpretation of
its appellate powers after the LCC confirms a Magistrate’s
Court’s
eviction order was not optimal, and that, in fact, the
better reading of the legislation makes the confirmation order
appealable.
The Bredas should have had the chance to be heard
before an order affecting them so radically was issued.
[53]
The interim order should not have been granted. I
dissented then and I dissent now.
For Applicants:
For Respondent:
P R Hathorn SC with U K Naidoo instructed by J D van der Merwe
Attorneys.
J J Botha
instructed by Blyth & Coetzee.
[1]
The Afrikaans version of the order reads as follows:
“
1. Dat dit regverdig en billik is dat die 1 ste
Respondent (en sy familie) die perseel te:
Voorbaat Plaas soos omskryf in die aansoek
Moet ontruim voor of op 20 Desember 2012; en
Indien die verweerder (en sy familie) versuim om die
perseel te ontruim, kan die Balju van die bogenoemde Agbare Hof die
uitsettingsbevel
uitvoer op of na 12h00 op die 31 ste Desember 2012.
Die uitvoering van hierdie bevel word opgeskort
hangende die bekragtiging deur die Grondeise Hof.”
[2]
62 of 1997.
[3]
Literally translated, “small hall”.
[4]
The court record proffers only the first name of “Kobus”.
[5]
The court record proffers only the first name of “Andries”.
[6]
The requirements for interim relief are plainly set out by Innes, JA
in
Setlogelo v Setlogelo
1914
AD 221
at 227. These requirements were later refined in
Webster v Mitchell
1948
(1) SA 1186
(WLD). The requirements are—
(a) a
prima facie
right, even if it’s open
to some doubt;
(b) a reasonable apprehension of irreparable harm if
the interim relief is not granted;
(c) the balance of convenience favours the granting of
an interim interdict; and
(d) the applicant has no other satisfactory remedy.
[7]
The LCC provided its reasons on 13 August 2013.
[8]
See, for example,
Magodi v Van Rensburg
2002 (2) SA 738
(LCC) at para 12 and
Brummer
v Joostenberg
, unreported judgment of the
Land Claims Court of South Africa, Randburg Case No 16R/2013
(20 February 2015) at para
8.
[9]
Snyders v de Jager
[2016]
ZACC 55
(eviction judgment).
[10]
At para 49.
[11]
See [6] – [8] above.
[12]
The attorney’s email reply refers to a “
faks
”
,
but the record has only the email exchange.
[13]
In the application he brought to commit Ms de Jager for contempt, Mr
Snyders’ attorney, Mr van der Merwe, deposed to a
replying
affidavit, in which he contended:
“
The
respondent did not explain why she took no steps (after becoming
aware of the intention to appeal on 1 October 2015, as is
common
cause) to prevent Mr Breda to move into the dwelling, which only
occurred on 2 October 2015.”
It may
have been too late to prevent the eviction of the Snyders, but Mr
van der Merwe says it may
not have been too late
to prevent the conflict with the Bredas. And so the
recriminations may be multiplied. The point
is that either
party could have avoided the conflict – whether by providing
earlier notice or applying more prudence.
[14]
Eviction judgment above n 9 at para 71.
[15]
Section 26(3) of the Constitution provides:
“
No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all the
relevant
circumstances. No legislation may permit arbitrary evictions.”
[16]
The Court, by directions dated 2 March 2016, invited the Breda
family to indicate why they should not be joined to the eviction
proceedings against the Snyders.
[17]
Snyders v de Jager
[2016]
ZACC 54
at para 10.
[18]
Mr Snyders’ attorney suggested, placing mistaken reliance on
Pharo’s Properties CC v Kuilders
[2001]
ZALCC 1
;
2001 (2) SA 1180
(LCC), that moving an occupier protected
by ESTA from one dwelling to another on the same farm need not
constitute an “eviction”,
and, equally mistakenly,
suggested that Ms de Jager could obtain an urgent eviction order
against the Bredas in the Magistrate’s
Court, whereas the
jurisdiction for that court to do so does not exist.
[19]
Snyders v de Jager
[2016]
ZACC 53
at para 9.
[20]
In
African National Congress v Chief
Electoral Officer, Independent Electoral Commission
[2009]
ZACC 13
;
2010 (5) SA 487
(CC);
2009 (10) BCLR 971
(CC), at para 11,
the Court noted that ordinarily, “this Court is not suited to
hear urgent matters, because of its composition
and functions”.
[21]
In
President of the Republic of South Africa
v United Democratic Movement
[2002] ZACC 34
;
2003 (1) SA 472
(CC);
2002 (11) BCLR 1164
(CC), at para 30, the
Court said expressly that the “Constitutional Court is not
designed to act in matters of extreme
urgency” during recess:
“
It consists of eleven members and a quorum of
the Court is eight of them. This Court is in recess for some
months
of each year and during those times its members disperse to
their homes which, in some cases, are a considerable distance from
the seat of the Court in Johannesburg. Members of the Court
are however obliged to be available for recall to the
seat of
the Court at short notice. However, it is not always possible
to convene a quorum of the Court at very
short notice
during a recess. If the High Court is not able to grant
an interim order in an urgent case where there
is a justifiable fear
of irreparable harm, a person who might be prejudiced by an act
flowing from the legislation might well
be left without an
effective remedy. That would be an unfortunate
consequence which should not lightly be held to
be an inevitable
consequence of the provisions of the Constitution.”