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[2016] ZACC 54
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Snyders and Others v De Jager (Joinder) (CCT186/15) [2016] ZACC 54; 2017 (5) BCLR 604 (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 54
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J,
Froneman J, Jafta J, Khampepe J, Madlanga J,
Mhlantla J, Nkabinde J and Zondo J
Judgments:
Zondo J (majority): [1] to [22]
Froneman J
(dissenting): [23] to [33]
Heard on:
2
February 2016
Decided on:
21 December 2016
Summary:
Joinder
— direct and substantial interest — challenge to an
eviction order — reoccupation of a house occupied
by another
party subsequent to eviction proceedings —current occupant of
the house to be joined as a party
ORDER
Whether a person who
is allowed by the owner of a house to occupy that house after the
eviction of another person has a direct and
substantial interest and,
therefore, should be joined in proceedings where the evicted person
challenges the eviction order and
seeks to reoccupy the house.
Order
1. Mr Willem Breda and his family are joined as the second and
further respondents in the application for leave to appeal brought
by
the current applicants in the proceedings under case no CCT 186/15.
2. There is no order as to costs.
JUDGMENT
ZONDO J (Mogoeng CJ,
Moseneke DCJ, Bosielo AJ, Cameron J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J
and Nkabinde J
concurring):
Introduction
[1]
The background to this matter is contained in a judgment
dealing with an application for leave to appeal between the same
parties
which is being handed down at the same time as this
judgment.
[1]
I do not propose to repeat the factual background. This
judgment is on whether Mr Willem Breda and his family should
be
joined in the application for leave to appeal and the appeal dealt
with in the other judgment. It should suffice to say
this:
Mr Snyders, who is the first applicant in the application for leave
to appeal, his wife and their family were evicted
by Ms de Jager, the
respondent in that matter, from a house which they occupied on a farm
(Stassen Farm) of which Ms de Jager is
the manager.
[2]
After Mr Snyders and his family had been evicted from the
house, Ms de Jager moved Mr Breda and his family into that house.
If this Court upholds Mr Snyders’ appeal, he will be entitled
to move back into the house from which he and his family were
evicted
by Ms de Jager. If that were to happen, Mr Breda and his family
would still be living in the house. They may
refuse to vacate
the house when asked to make way for Mr Snyders and his family.
The question then arose whether Mr Breda
and his family should not be
joined in the application for leave to appeal.
Should Mr Breda
and his family be joined?
[3]
On 2 March 2016 which was after the hearing of this
matter in this Court the Chief Justice issued directions to Mr
Willem Breda inviting him and his family to indicate whether they
wished to be joined as respondents in the application for leave
to
appeal brought by Mr Snyders and his family as well as in the appeal
if leave was granted. In the same directions, Mr
Breda and his
family were invited to make whatever representations they wished to
place before the Court on why an eviction order
should not be granted
against him and his family should Mr Snyders’ appeal succeed.
That would be if this Court held
that the eviction order
granted by the Magistrate’s Court against Mr Snyders, his wife
and family should not have been granted.
[4]
In due course Mr Breda filed affidavits in response to the
Chief Justice’s directions. Mr Breda and his family
indicated
that they did not wish to be joined in the proceedings.
He did not give any reasons. Mr Breda then went on to make
representations as to why this Court should not make an eviction
order against him and his family if Mr Snyders’ appeal
succeeded.
[5]
In
Klaase
[2]
a Magistrate’s Court had granted an eviction order against
Mr Klaase and all those occupying a certain house through
him
which included his wife, Mrs Klaase, even though Mrs Klaase had not
been joined as a respondent in the eviction application.
When
the Magistrate’s Court’s eviction order was the subject
of an automatic review by the Land Claims Court in terms
of section
19(3) of the Extension of Security of Tenure Act (ESTA),
[3]
Mrs Klaase applied to the Land Claims Court to be joined in the
proceedings but the Land Claims Court dismissed her application.
She then appealed to this Court.
[6]
This Court held that Mrs Klaase had a direct and substantial
interest in the order sought by the owner of the land against her
husband
which included her and all those who were occupying the
property through Mr Klaase. The Court confirmed that the test
for
joinder is that a litigant must have a direct and substantial
legal interest that may be affected prejudicially by the judgment
of
the Court in the proceedings concerned. This Court referred to
ITAC
[4]
and pointed out that the overriding consideration was whether it was
in the interests of justice for a party to intervene in the
litigation.
[5]
[7]
This Court went on to say: “Mrs Klaase has a direct and
substantial interest in the relief sought against Mr Klaase.”
[6]
In giving reasons for this, this Court said:
“It is undisputed that [Mrs Klaase] has lived on the farm,
continuously and openly . . . It is apparent from the probation
officer’s report that Mrs Klaase, together with her children
and grandchildren, will be rendered homeless because of the
unavailability of alternative accommodation if evicted.”
The eviction order
sought in the Magistrate’s Court was sought against her as
well. Reference must also be made to section
26(3) of the
Constitution. It reads:
“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.”
[8]
Section 10(3) of ESTA is also relevant. It reads:
“If—
(a) suitable alternative accommodation is not available to the
occupier within a period of nine months after the date of termination
of his or her right of residence in terms of section 8;
(b) the owner or person in charge provided the dwelling occupied by
the occupier; and
(c) the efficient carrying on of any operation of the owner or person
in charge will be seriously prejudiced unless the dwelling
is
available for occupation by another person employed or to be employed
by the owner or person in charge,
a court may grant an order for eviction of the occupier and of any
other occupier who lives in the same dwelling as him or her,
and
whose permission to reside there was wholly dependent on his or her
right of residence if it is just and equitable to do so,
having
regard to—
(i)
the efforts which the owner or person in charge and the occupier have
respectively made in order to secure suitable alternative
accommodation for the occupier; and
(ii)
the interests of the respective parties, including the comparative
hardship to which the owner or person in charge, the occupier
and the
remaining occupiers shall be exposed if an order for eviction is or
is not granted.”
This provision means
that a court may grant an eviction order against someone whose right
of residence is dependent upon an occupier
as defined.
[9]
A person has a direct and substantial interest in an order
that is sought in proceedings if the order would directly affect such
a person’s rights or interest. In that case the person
should be joined in the proceedings. If the person is
not
joined in circumstances in which his or her rights or interests will
be prejudicially affected by the ultimate judgment that
may result
from the proceedings, then that will mean that a judgment affecting
that person’s rights or interests has been
given without
affording that person an opportunity to be heard. That goes
against one of the most fundamental principles
of our legal system.
That is that, as a general rule, no court may make an order against
anyone without giving that person
the opportunity to be heard.
[10]
In the context of eviction proceedings 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. That
is where
the eviction order relates to someone’s home.
[11]
I have already quoted section 26(3) of the Constitution as
well as section 10(3) of ESTA. Section 10(3) contemplates that
a court that grants an eviction order against an occupier such as is
referred to in that provision may also grant an eviction order
against “an occupier who lives in the same building as him or
her, and whose permission to reside there was wholly dependent
on his
or her right of residence if it is just and equitable to do so,
having regard to” certain factors set out therein.
[12]
In the present case, if we conclude that the Magistrate’s
Court erred in granting the eviction order and the Land Claims Court
erred in confirming that order, it will follow that the Magistrate’s
Court should have dismissed Ms de Jager’s application.
We
would then have to replace the eviction order of the Magistrate’s
Court with an order dismissing the application.
The implication
of such an order would be that Mr Snyders and his family must be
granted vacant possession of the house from
which they were evicted.
This would entail that Ms de Jager should get Mr Breda and his family
out of the house.
[13]
If Mr Breda refused to vacate the house, the question that
would arise is what Ms de Jager could do to achieve the restoration
of
the peaceful possession of the house to Mr Snyders and his
family. There would be no eviction order against Mr Breda
and his family that could be given to the Sheriff to execute and
ensure Mr Breda’s eviction. If Ms de Jager decided
to institute eviction proceedings against Mr Breda and his family
that could delay the finalisation of the matter by a few more
years
if there were to be appeals. This would frustrate the success
of Mr Snyders’ appeal and this Court’s order
replacing
the eviction order of the Magistrate’s Court.
[14]
Furthermore, if Ms de Jager did not genuinely want Mr Snyders
and his family back in the house and wanted Mr Breda and his family
to continue occupying the house, she could arguably take her time in
pursuing the eviction application against Mr Breda and his
family or
even make sure that the application was defective so that it would be
dismissed. If the application or action was
dismissed, that
would then be the end of the road. In this regard I am
referring to a situation where, even after all appeals
have been
exhausted, the result is that Ms de Jager’s application or
action for Mr Breda’s eviction and the eviction
of his family
fails. That would be the end of the matter. Mr Snyders
and his family would not have been able to have
peaceful possession
of the house restored to them and Mr Breda would remain within the
house despite this Court having found that
Mr Snyders and his family
should not have been evicted. All of this would be very
frustrating.
[15]
It seems to me that the above scenario would render Mr
Snyders’ victory on appeal before us a hollow one. Our
order
would have been ineffective and rendered worthless. This
type of result could happen in a case where a litigant has paid a
lot
of money in legal fees and costs but, after victory in the highest
court in the land, he would discover that he has nothing
to show for
the victory. In my view, the way to avoid this possible
frustration of the court processes is to join Mr Breda
and his family
in the proceedings. If this Court concludes that the
Magistrates’ Court should have dismissed Ms de
Jager’s
application, this Court should consider whether or not it would be
just and equitable to grant an eviction order
against Mr Breda and
his family so as to make way for Mr Snyders and his family to go back
to the house.
[16]
The advantage of this approach is that, if Mr Breda refuses to
vacate the house, Mr Snyders’ attorney could simply instruct
the Sheriff to execute the eviction order. This would mean
evicting Mr Breda and his family from the house so that Mr Snyders
and his family could re-occupy the house. That would be
effective and would not result in the institution of other eviction
proceedings that could take years before finality is reached.
At the same time all concerned parties would have been heard
before
the Court makes the final decision.
[17]
The
eviction of Mr Breda and his family from the house previously
occupied by Mr Snyders and his family does not mean their eviction
from the Stassen Farm. Indeed, there is a vacant house, the
wendy house, which Ms de Jager said provides proper accommodation
which she was prepared to offer to Mr Snyders and his family.
There is no reason why Mr Breda and his family cannot be given
that
house to occupy. If, in the meantime, Mrs de Jager has given
that house to someone else to occupy despite knowing that
this Court
has not given its judgment in this matter, she will have herself to
blame and she will have to see where she accommodates
Mr Breda
and his family. This is a bed that Ms de Jager made on 1
October 2015 when she abruptly evicted Mr Snyders
and his family from
the house in question and put Mr Breda and his family into the house
without ascertaining from Mr Snyders or
his attorneys whether he was
still going to pursue litigation after the decision of the Supreme
Court of Appeal. Now, she
must lie in it. She has no one
else to blame for this.
[18]
I have had the opportunity of reading the judgment by my
Colleague, Froneman J, in which he concludes that it is not necessary
to
join Mr Breda and his family. He concludes that, if we
uphold Mr Snyders’ appeal, both Ms de Jager and Mr Breda will
be bound by our decision even if Mr Breda has not been joined as a
party.
[19]
I am prepared to assume that this is correct but the
difficulty I have is that, without an order evicting Mr Breda from
the house,
he could again refuse to move out of the house just as he
refused to move out after this Court had granted the applicants
interim
relief. If he were to refuse to vacate the house, then
Ms de Jager would have to institute fresh eviction proceedings,
probably
in the Magistrate’s Court. We are dealing with
this matter almost eight years after Ms de Jager instituted the
eviction
proceedings against Mr Snyders and his family in the
Magistrate’s Court, Ladismith. It could, therefore, be
another
seven or eight years of waiting for Mr Snyders and his family
before finality is reached in this matter if we adopt the approach
suggested by my Colleague.
[20]
We should avoid such a long delay in bringing litigation to
finality where we can. In my view, this is one of those cases
where we can. We have afforded Mr Breda and his family an
opportunity to be heard and, by joining Mr Breda and his family
in
the main proceedings, we are going to make sure that the judgment we
give
is an effective
one. If we did not do this and the litigation took 12 years to
reach finality, people may start losing faith
and confidence in our
courts.
[21]
I conclude that Mr Willem Breda as well as all those occupying
the house through him should be joined as the second and further
respondents. There is to be no order as to costs with regard to
the joinder.
[22]
The following order is made:
1. Mr Willem Breda and his family are joined as the second and
further respondents in the application for leave to appeal brought
by
the current applicants in the proceedings under case no CCT 186/15.
2. There is no order as to costs.
FRONEMAN J:
[23]
This matter started off before us as an application for leave
to appeal by one family (Snyders family) against an eviction order
granted against them. It now threatens to end in an eviction
order by this Court against another family (Breda family) who
was not
even a party to the original leave to appeal proceedings and who does
not wish to be joined as a party at this late stage.
That
sounds strange. It is, because the law, if allowed to run its
normal course, does not require the joinder of the Breda
family, or
an eviction order by this Court against them for a just resolution of
the appeal.
[24]
My colleague Zondo J has written a number of judgments dealing
with different aspects of the proceedings. It is necessary to
clarify my position in relation to these before proceeding. I
was not part of the coram of the Court when the interim order
against
the Breda family was made. Accordingly, I have no comment on
the merits of that decision, only on its legal effect
on their
possible joinder (joinder judgment) and eviction (merits judgment).
It is only in relation to the joinder and eviction
of the Breda
family that I differ from my colleague. Otherwise, for the
reasons he gives, I agree that leave should be granted,
that the
appeal should succeed and that the original application for eviction
of the Snyders family should be dismissed.
So too with the
costs orders and the finding that Ms de Jager is not guilty of any
contempt.
[25]
What follows are the reasons why joinder of the Breda family
should not be ordered and why this Court should not issue an eviction
order against them.
[26]
The Breda family gained occupation of the dwelling only after
the Supreme Court of Appeal judgment was handed down. Before
that they had no right to occupy the premises. They therefore
could not have had an existing direct and substantial interest
in the
subject matter of the litigation in the Magistrate’s Court,
which went on review to the Land Claims Court and then
on appeal to
the Supreme Court of Appeal. The further appeal to this Court
must be decided on the facts on record in the
appeal before the
Supreme Court of Appeal.
[27]
On noting the application for leave to appeal to this Court
from the Supreme Court of Appeal the operation and execution of the
judgment of the Supreme Court of Appeal was automatically suspended
“with the result that, pending the appeal, the judgment
cannot
be carried out and no effect can be given thereto, except with the
leave of the Court which granted the judgment”.
[7]
The purpose of this rule “is to prevent irreparable damage from
being done to the intending appellant, either by levy
under a writ of
execution or by execution of the judgment in any other manner
appropriate to the nature of the judgment appealed
from”.
[8]
[28]
The occupation given to the Breda family by Ms de Jager after
the Supreme Court of Appeal handed down its judgment could thus not
survive or trump the legal consequences flowing from the noting of
the appeal. If Ms de Jager wished to legitimise her perhaps
precipitated action in allowing the Breda family to occupy the
premises, she would have had to apply for leave to allow the
occupation
of the Breda family to continue, which she did not do.
She cannot rely on her own unlawful act to frustrate the
implementation
of the final order on appeal.
[29]
Nor can the Breda family. They had no existing direct
and substantial interest in the proceedings before us on appeal.
[9]
They occupied the dwelling only after the judgment of the Supreme
Court of Appeal. Their occupation was derivative
and could only
flow from any competence that Ms de Jager may have had to grant
permission to them to occupy the dwelling.
As stated above, the
noting of the appeal deprived Ms de Jager of any competence to
frustrate the eventual final finding on
appeal. She had no
“right” to pass on to the Breda family.
[30]
The outcome of the appeal is authority on the legal issues
which would be directly in point in relation to the Bredas’
later
claim to occupation. Any assertion by the Breda family
that our decision is not
res judicata
, or does not prevent the
operation of the doctrine of issue estoppel, between them and Ms de
Jager, as far as their eviction from
the dwelling is concerned,
cannot be sustained because of this. They and Ms de Jager
are “‘deemed’
to be the ‘same person’
or . . . are identified with one another for the purposes of
res
judicata
”
[10]
or issue estoppel.
[11]
[31]
The interim order changed none of this. In effect it
attempted to preserve what the rules of court in any event provided
for.
The legal difficulties experienced in giving effect to the
order flowed from the fact that no final pronouncement had been given
on the outcome of the appeal. Those difficulties have now been
resolved. Neither Ms de Jager nor the Breda family have
any
legal ground for not giving effect to the order on appeal of this
Court. Ms de Jager must allow the Snyders family to
return and
must provide suitable and adequate alternative housing to the Breda
family.
[32]
There is no further need to order joinder of the Breda family
in order to give an effective eviction order against them that did
not form part of the appeal. The legal consequences of the
successful appeal are clear and they must run their normal course.
Paragraphs 1 to 3 and 7 of the order in the merits judgment are all
that is necessary.
[33]
This is a matter where, with common sense and a sense of
humanity, there should have been no need to come to court at all.
Legal representatives are able to steer conflicts in a conciliatory
direction if they give sensible advice to their clients.
In the
joinder judgment, Zondo J makes mention of potential difficulties if
joinder and eviction of the Breda family are not ordered.
All
that will however not eventuate if Ms de Jager and the Breda
family understand and appreciate the consequences of the
order in the
eviction appeal. The Snyders family must be restored to their
possession and the Breda family, in their turn,
must be given
occupation of a dwelling on the farm where they can live and work
with dignity. Even after all that has passed,
it is better for
all concerned to effect this in a dignified and conciliatory manner,
if possible by agreement between all.
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]
Snyders and Others v
de Jager
[2016] ZACC
55.
[2]
Klaase v van der
Merwe N.O.
[2016]
ZACC 17; 2016 (9) BCLR 1187 (CC).
[3]
62 of 1997. Section 19(3) of ESTA reads:
“
Any order for eviction
by a magistrate’s court in terms of this Act, in respect of
proceedings instituted on or before 31
December 1999, shall be
subject to automatic review by the Land Claims Court, which may—
(a) confirm such order in whole
or in part;
(b) set aside such order in
whole or in part;
(c) substitute such order in
whole or in part; or
(d) remit the case to the
magistrate’s court with directions to deal with any matter in
such manner as the Land Claims Court
may think fit.”
[4]
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd
(CCT
59/09)
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC)
(
ITAC
).
[5]
See
Klaase
above n 2 at para 45.
[6]
Id at para 46.
[7]
Per Corbett JA in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A);
[1977] 4 All SA 53
(A) at 545A (
South
Cape Corporation
).
This was the common law position, reinforced by rule 49(11) of the
Uniform Rules of Court and now
section 18
of the
Superior Courts Act
10 of 2013
.
[8]
South Cape
Corporation
id.
[9]
Joinder may be ordered on appeal where a third party’s
existing
rights may be directly and substantially affected (
Collin
v Toffie
1944 AD
456
;
Home Sites (Pty)
Ltd v Senekal
1948
(3) SA 514
(A);
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A));
[1949] 4 All SA 544
(A); or where the order
would impact on the constitutional housing obligations of a local
authority (
City of
Johannesburg v Changing Tides 74 (Pty) Ltd
[2012] ZASCA 116
;
2012 (6) SA 294
(SCA) at para 38).
[10]
Royal Sechaba
Holdings v Coote
[2014] ZASCA 85
;
2014 (5) SA 562
(SCA) at para 14.
[11]
Id at paras 17-21.