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[2017] ZACC 18
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Occupiers of Erven 87 and 88 Berea v De Wet N.O. and Another (CCT108/16) [2017] ZACC 18; 2017 (8) BCLR 1015 (CC); 2017 (5) SA 346 (CC) (8 June 2017)
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Heads of arguments
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 108/16
In the matter between:
OCCUPIERS OF ERVEN 87 & 88
BEREA
Applicants
and
CHRISTIAAN FREDERICK DE
WET N.O.
First Respondent
ROYNATH PARBHOO
N.O.
Second Respondent
And
THE POOR FLAT DWELLERS
ASSOCIATION
Amicus Curiae
Neutral citation:
Occupiers of erven 87 & 88 Berea v Christiaan Frederick De Wet
N.O.
[2017] ZACC 18
Coram:
Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Judgments:
Mojapelo AJ (unanimous)
Heard on:
14 February 2017
Decided on:
8 June 2017
Summary:
eviction by consent — duties of a court — section
26(3) of the Constitution —
section 4
of the
Prevention of
Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998
informed consent—rule 42(1)(a) of the Uniform Rules of Court—
common law rescission —
iustus error
ORDER
On appeal from the High Court of South
Africa, Gauteng Local Division, Johannesburg:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of Adams AJ dated 12 November 2015 is set aside and
substituted with the following:
“The eviction
order granted by Khumalo J on 10 September 2013 is rescinded.”
4.
The matter is remitted to the High Court of South Africa, Gauteng
Local Division, Johannesburg
(High Court) with the direction that the
matter be case-managed and dealt with on an expedited basis.
5.
The City of Johannesburg is joined as a further respondent to the
proceedings in the High Court.
6.
The applicants are directed to serve on the City of Johannesburg,
within five days of this order,
a copy of the record filed in this
Court and a copy of this judgment and order.
7.
The City of Johannesburg is directed to file a report with the
High Court, confirmed on affidavit
within 30 days of receiving
the documents from the applicants in terms of paragraph 6, on what
steps it has taken and what steps
it intends or is able to take in
order to provide alternative land or emergency accommodation to the
applicants in the event of
their being evicted and when the
alternative land or accommodation can be provided.
8.
The applicants and the respondents may, within 15 days of delivery of
the City of Johannesburg’s
report, file affidavits in response
to the report.
9.
No order is made as to costs.
JUDGMENT
MOJAPELO AJ (Mogoeng CJ, Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J,
Pretorius AJ and Zondo
J concurring):
Introduction
[1]
The central question that arises in this case is whether in
eviction proceedings, where an unlawful occupier has purportedly
consented
to his or her eviction, the Court is absolved from the
obligation to consider all relevant circumstances before ordering an
eviction.
A closely related question is whether an eviction
order may be rescinded at the instance of occupiers who had
purportedly consented
to it.
[2]
On 10 September 2013, the High Court of South Africa, Gauteng
Local Division, Johannesburg (High Court), granted an order for the
eviction of the occupiers from a block of flats, Kiribilly, situated
on erven 87 and 88, at the corner of Soper and Fife Roads,
Berea,
Johannesburg (property). The order was granted purportedly by
agreement between the parties in circumstances that
are more fully
set out later in this judgment.
Parties
[3]
The applicants are 184 residents of the property and consist
of 47 women, 114 men and 23 children. They are cited simply as
“the Occupiers” as their particulars were not known at
the time of the institution of the proceedings and until the
rescission application referred to below was filed. Some of the
applicants have resided at the property for periods of up
to 26
years. Most of them are low income earners or unemployed.
[4]
The applicants are occupiers of the property which was owned
by M L Rocchi Investments CC (M L Rocchi) since 1985.
The first and second respondents are the joint liquidators of M L
Rocchi appointed with effect from 27 September 2011. Mr Calvin
Maseko (Mr Maseko), who is involved in the business of property
development, purchased the property from the liquidators of M L
Rocchi and intended to spend more than R3 million on its upgrade.
It appears that it was his intention that, once he had
refurbished
the property, he would offer the residential apartments for rent.
This offer would be extended to the applicants
should they apply, and
qualify, for leases in the property. While the liquidators
remain the nominal respondents, who are
obliged to give
vacua
possessio
(vacant possession), Mr Maseko is the
de facto
(in fact) beneficial respondent who invested the proceeds of his
pension in the property and financed the litigation as the
liquidators
were, and are still, unable to do so.
[5]
The
amicus curiae
(friend of the court), the Poor Flat
Dwellers Association, is a non-profit civic association which was
formed in 2009 to resist
the exploitation of flat dwellers. It
represents the plight of many sectional title flat owners and tenants
living in former
municipality owned flats that are rented out as
residential accommodation.
Factual Background
[6]
On 31 January 2013, and pursuant to the sale, the respondents’
attorneys served a letter on the applicants notifying them of
the
termination of their right of occupation or lease in respect of the
property. According to the Sheriff’s return
of service,
the letter was affixed on the principal doors of the property.
In July 2013, the preliminary notices in terms
of the Prevention of
Illegal Eviction From and Unlawful Occupation of Land Act
[1]
(PIE) were served and an order was obtained authorising the service
of the eviction application on the applicants. On 23
August
2013, the Sheriff filed his return indicating that a copy of the
notice of eviction had been served on the applicants at
the property,
as required in terms of section 4(2) of PIE.
[2]
Earlier, on the same date, the Sheriff also served a section 4(2)
notice on the City of Johannesburg (City).
[7]
After receiving the section 4(2) notice, the applicants
approached Mr Skhulu Ngubane (Mr Ngubane), a ward committee
member,
for assistance.
[3]
From the facts, it appears that an initial meeting was held
with Mr Ngubane and some of the applicants between July and August
2013, at which meeting Mr Ngubane informed the applicants who were
present that he would look further into the matter. At
a second
meeting held on 6 September 2013, Mr Ngubane visited the property and
had a meeting with some of the applicants.
At this meeting, it
appears as if four of the applicants (appearer applicants) were
mandated to attend court and seek a postponement
in order to enable
the applicants to obtain legal representation. Mr Ngubane
would also attend with the appearer applicants
and speak on their
behalf. Neither the applicants nor the City entered an
appearance to defend before the hearing of 10 September 2013.
Litigation history
[8]
The application came before Khumalo J in the High Court, on
10 September 2013. The appearer applicants, Mr
Ngubane
and the respondents’ legal representatives were present
in Court when the matter was called for the first time. The
applicants were not legally represented. The matter was stood
down for the parties to confer. When it was called for
the
second time, counsel for the respondents informed the Court that the
matter had been settled and presented a draft order to
the Court.
It was submitted that the order had been agreed to by the parties.
When asked by the Court, Mr Ngubane confirmed
this and the draft
order was accordingly made an order of court by Khumalo J on 10
September 2013. The order provided
for the following changes
(in favour of the applicants) to the draft order: (a) the date
of eviction was changed from 31 October
2013 to 15 November 2013;
and (b) a first option to enter into the tenancy was provided
for in favour of the applicants
who qualified in respect of the
property once refurbished. Significantly, there was no request
for postponement.
[9]
Upon realising that a postponement was not secured and that
the eviction had been made an order of court “by agreement”,
the applicants approached their present legal representatives, the
Socio-Economic Rights Institute of South Africa (SERI), in September
2013.
[10]
Shortly after engaging the services of SERI, the applicants
launched multiple challenges against the eviction order on the
grounds
set out below. They started with an application for the
rescission of the eviction order, followed by a separate application
for leave to appeal against the eviction order. Khumalo J
dismissed the application for leave to appeal on the basis that
the
order was not appealable. A petition to the Supreme Court
of Appeal failed for the same reason.
[11]
The application for rescission of the eviction order was also
dismissed by Adams AJ. The applicants launched an
application
for leave to appeal against the refusal to grant
rescission. Pending leave, they brought a separate application
to stay their
eviction, which was granted by Mphahlele J. That
success was however short lived because shortly thereafter Adams
AJ
heard and dismissed the application for leave to appeal against
the refusal of rescission. A further petition to the Supreme
Court of Appeal against refusal of rescission was dismissed for lack
of prospects.
[12]
It is against the backdrop of these successive failures in
both the High Court and the Supreme Court of Appeal that the
applicants
approached this Court. They seek leave to appeal, in
terms of rule 19 of this Court’s Rules, against the whole
judgment
and order granted by Adams AJ in the matter of
Occupiers
of Erven 87 and 88 Berea Township
.
[4]
In this Court
Applicants’ submissions
[13]
The applicants contended, firstly, that there was no actual
consent between the parties when the order was granted purportedly by
agreement. Secondly, the applicants contended that, even if
consent could be found, such consent was not legally valid. Thirdly,
the applicants submitted that, even if the consent was legally valid,
the Court was under constitutional and statutory duties to
satisfy
itself that the eviction would, nevertheless, be just and equitable
after considering all the relevant circumstances. The
High
Court, they contended, failed to perform these duties. Lastly,
the applicants submitted that the eviction order falls
to be
rescinded in terms of rule 42 of the Uniform Rules of Court
[5]
or the common law.
Respondents’ submissions
[14]
The respondents contended that the applicants were unlawfully
occupying the property given that an eviction order by agreement was
granted and leave to appeal against it was refused. They argued
that it was not common cause that the eviction of the applicants
from
the property would leave them homeless. They submitted that
there was no evidence before the Court that any of
the applicants had made any attempts to find affordable alternative
accommodation.
Accordingly, the respondents submitted
that it is not in the interests of justice for leave to appeal to be
granted against
the rescission judgment of the High Court because of
the time period that has elapsed and the failure by the applicants to
take
steps in an attempt to secure alternative accommodation
themselves.
[15]
The respondents indicated that the new purchaser’s
investment in the building is being sterilised to the detriment of
the
purchaser, particularly in light of the fact that the cost to
refurbish the building has escalated substantially.
Furthermore,
the respondents submitted that the applicants had not
articulated a defence that would entitle them to remain in occupation
of
the property and thus that an eviction order is just and equitable
under the first enquiry mandated in
Changing Tides
.
[6]
[16]
Finally, the respondents submitted that the applicants had not
brought themselves within the ambit of a procedural defect as
contemplated
in rule 42 of the Uniform Rules of Court insofar as
rescission is concerned; and that the applicants’ right to
access the
courts has not been infringed as the applicants still have
the opportunity to enforce their right directly against the City.
Amicus curiae’s submissions
[17]
The
amicus
curiae
submitted that in the event
that there was actual consent, it was still impermissible for the
High Court to have granted the eviction
order without employing its
judicial oversight function as required by PIE and as guaranteed in
section 34 of the Constitution.
[7]
It argued that the absence of judicial oversight in eviction orders
taken “by consent” does not give effect to
the right of
access to courts in terms of section 34 of the Constitution.
This is so, the
amicus curiae
submitted, because people may be
evicted by purported consent without a full understanding of: (a)
their rights or (b) what they
are consenting to and (c) without
judicial interrogation as to the effect of the eviction.
Issues
[18]
The issues that this Court is called upon to decide are the
following:
(a)
Condonation;
(b)
Leave to appeal;
(c)
Consent, waiver, and mandate;
(d)
The duties of a court in eviction proceedings generally, and in the
face of a purported consent;
(e)
How the High Court approached its duties;
(f)
Joinder of the local authority;
(g)
Valid defence under PIE;
(h)
Rescission;
(i)
Remedy; and
(j)
Costs.
Condonation
[19]
Firstly, the respondents’ written submissions were late
by almost three months. They applied for condonation citing
financial constraints as the reason for the delay. It is from
the condonation affidavit of Mr Maseko that it is revealed that
he
funded the litigation from the onset as part of his investment in the
property or the protection of such investment, as the
liquidators
from whom he purchased the property were not able to do so. Mr
Maseko recorded that the delay in filing submissions
was due to the
fact that he ran out of funds and could not afford legal
representation any more. The respondents and Mr Maseko
indicated that they were only able to continue with the litigation
and to appear at the hearing of the application in this Court
as
their attorneys have agreed to pursue the matter
pro bono
(free
of charge). The financial constraints are an undeniable
reality. Although the delay is lengthy, it is in the interests
of justice to condone the late filing in order for the matter to be
fully ventilated. This will in turn enable this Court
to
balance the interests of the parties as it is enjoined to do.
[8]
[20]
Secondly, the
amicus curiae’s
application for
admission was due on 21 October 2016 but was only filed on
13 January 2017 together with a condonation
application. It
appears that the
amicus curiae
only became aware of this
matter in December 2016 after which it closed for the festive break.
Besides, the period of 16 December
2016 to 13 January 2017
fell within the
dies non
at the Court
.
[9]
The explanation is acceptable and the parties are not
prejudiced. Accordingly, it is in the interests of justice to
condone the delay.
Leave to appeal
[21]
The application raises a constitutional matter as it directly
concerns section 26(3) of the Constitution and the
interpretation
of the provisions of PIE. This legislation was
enacted to give effect to section 26(3) of the Constitution. It
is a
well established principle that an eviction from one’s
home always raises a constitutional issue.
[10]
The right in terms of section 25 of the Constitution is also
implicated. The applicants have reasonable prospects of
success.
[11]
Accordingly, it is in the interests of justice to grant
leave to appeal.
Merits
Consent, waiver and mandate
[22]
The examination of consent, waiver and mandate is relevant for
purposes of determining whether the order may be rescinded and set
aside. The order may be set aside either in terms of rule
42
[12]
of the Uniform Rules of Court or in terms of the common law. In
terms of rule 42(1)(a) an order may be rescinded where it
was
erroneously sought or erroneously granted in the absence of the
affected party.
[13]
An order is erroneously granted where there was no procedural
entitlement to it.
[14]
In
Ntlabezo
,
[15]
the Transkei High Court considered the issue concerning common law
rescission of a judgment which was consented to by a legal
representative without the authority of the client. It was held
that where legal representatives consent to judgments without
the
requisite authority, the judgment may be set aside.
[16]
[23]
As already stated, the applicants disputed that they, as a
fact, consented to the eviction order and, alternatively, they
dispute
that such consent is legally valid. Did the applicants
consent to the eviction? The question must be considered
against
the events that preceded the granting of the eviction order.
[24]
The applicants were notified for the first time in January
2013 by letter delivered by the Sheriff that they were to be evicted
from the property. A notice of motion was then served in July 2013.
Then in August 2013 a section 4(2) notice was served
giving
notice of the court date, 10 September 2013, on which the application
for eviction was to be moved at court.
[25]
The notices would have informed the applicants of their
procedural rights to give notice of their intention to oppose and to
appear
at court on the date of the hearing to oppose the application
for their eviction. Given that a period of almost nine months
had elapsed since they were first informed of the intended eviction
proceedings, they had an opportunity to reflect on the implications
of the intended eviction on their lives and, in particular, on their
continued occupation of the property. The move to evict
them
from the premises would have been discussed generally throughout the
property. However it is unlikely, given that they
had no legal
representation at the time, that they would have been aware of the
full extent of their rights under PIE and the Constitution.
That, they would only have known if they consulted a legal
representative.
[26]
The facts demonstrate that groups of them did meet on the
property to discuss the matter. Mr Maseko, the purchaser,
visited
the property to try to negotiate or speak directly with some
of the applicants before the hearing date. As mentioned above,
some of the applicants met with Mr Ngubane to discuss the eviction
application on two occasions.
[27]
The applicants knew that they had no right against the owner
to occupy the property. Their very continued occupancy of the
property was threatened. It must have been the concern of all
the applicants. Only those who decided to be indifferent
to the
development would have turned a blind eye to what was unfolding
before them. It is unlikely that they would not have
known what
was coming on 10 September 2013. The conclusion of
the High Court in this regard cannot be faulted.
[28]
It appears from the facts that the appearer applicants had a
very specific mandate: to seek a postponement to enable the
applicants
to get legal representation. There is nothing to
suggest that it ever occurred to the applicants, who did not go to
Court,
that something other than a postponement could happen there.
Although the appearer applicants were mandated to ask for a
postponement, they did not do so. What they precisely did at
Court is not all that clear, on their version. The events which
took
place at court, and which culminated in the eviction order being
granted, have been discussed above.
[17]
[29]
Whether they appreciated the full extent of their rights is
also questionable. But viewed from the perspective of the
respondents
and the Court: (a) there was a delegation from the
applicants at the Court, namely the appearer applicants; (b) proper
service
had been effected as authorised by the Court; (c) the
appearer applicants engaged with the respondents’ legal
representatives;
(d) the identity of the other applicants was unknown
to the Court; and (e) it appeared that the applicants had no defence
to the
merits of the application other than a right to alternative
accommodation for those who qualified.
[30]
The applicants argue that the onus that rests on the
respondents to prove consent was not discharged as the only positive
affirmation
made before Khumalo J was made by the respondents’
counsel and Mr Ngubane. They argue that the latter had no
authority
to make such a statement or to bind the applicants.
They argue further that the inference that they must have agreed to
the
order, as the draft order was amended in their favour, was not
sound. The applicants intended to oppose the eviction and,
in
the interim, to obtain a postponement to enable them to get legal
representation. It is clear that the applicants were
aware of
the inadequacy of their own ability, without legal representation, to
handle the application for eviction. That
is why they decided
to get legal assistance. They had no legal representation when
the order was obtained against them.
[31]
The appearer applicants contend that they remained silent when
presented with a draft order and did not speak in Court. They
did not ask for a postponement, which they say they meant to do.
However, it is improbable that their role was wholly passive.
It
is not improbable that they were involved in some discussions and
factually consented to the order. The finding
of the High Court
in this regard can, once again, not be faulted.
[18]
[32]
The next question that arises is whether factual consent by
the appearer applicants was legally effective. For consent to
be legally effective, it must have been given by the applicants
freely and voluntarily with the full awareness of the rights being
waived.
[19]
It must be an informed consent in order to be valid.
[20]
This requires a consideration of the potential waiver of
rights.
[33]
An agreement to an eviction order in the circumstances would
entail the waiver of, at a minimum, the constitutional and statutory
rights: (a) to an eviction only after a court has considered all the
relevant circumstances;
[21]
(b) to the joinder of the local authority and production by it of a
report on the need and availability of alternative accommodation;
[22]
(c) to a just and equitable order in terms of PIE;
[23]
and (d) to temporary alternative accommodation in the event that
eviction would result in homelessness.
[24]
The applicants and the
amicus curiae
contended, with some
force, that the rights are therefore incapable of being waived
because they are for the benefit of the public
at large. Even
if they were capable of waiver, such waiver would need to be free,
voluntary and informed.
[25]
It has not been disputed that the applicants were not informed
of any of these rights. It must therefore be accepted
that they
were not aware of any such rights. Given that the applicants
were not aware of their rights, the factual consent
that they gave
was not informed. Their consent is therefore not legally
valid. It is not binding on them. It
is therefore not
necessary in these circumstances to decide whether these rights are
capable of waiver.
[34]
This conclusion is applicable not only to the appearer
applicants but to
all
of the applicants for the reasons below.
[35]
The respondents failed to establish a connection between what
was “consented” to by the appearer applicants and those
180 applicants who did not attend in the High Court. In
this regard, the respondents did not even establish, at the
very
least, that the appearer applicants had an implied mandate from the
other applicants to take any further steps that might
have been
required, in the event that a postponement was not secured.
Although the appearer applicants factually consented
to the order, as
alluded to by Khumalo J,
[26]
this consent was, firstly, without mandate and secondly, it was not
an informed consent.
[36]
It is most probable that the High Court assumed that Mr
Ngubane’s intimation was representative of the position of all
the
applicants, which is incorrect. Any assumption that he was
a resident himself was also incorrect. The applicants contend
that Mr Ngubane offered to speak for the applicants and was mandated
to obtain a postponement. On his own version, Mr Ngubane
had no mandate to bind the applicants. It must be accepted that
Mr Ngubane had no authority to represent the applicants.
He was
neither their legal representative, nor an occupier. His
statements to the Judge were legally inconsequential.
[37]
Neither the appearer applicants nor Mr Ngubane could bind the
absent 180 applicants to an effective position regarding the eviction
order. On all accounts, none of them had the requisite mandate
to do so.
[38]
Accordingly, there was no legally effective and informed
consent by the applicants when the eviction order was granted against
them.
Duties of the Court
[39]
It is necessary to examine the duties of a court when dealing
with proceedings for eviction from residences generally, and when
faced with actual or purported consent to eviction. The duties
arise from the protection of the rights of residents. They
are,
in the circumstances, inextricably intertwined with the issue of
informed consent and waiver
[27]
which entails an examination into what rights the parties had and the
nature of those rights.
[40]
The starting point is section 26(3) of the Constitution which
provides that “[n]o one may be evicted from their home, or have
their home demolished, without an order of court made after
considering all the relevant circumstances”. Accordingly,
courts seized with eviction matters are enjoined by the Constitution
to consider all relevant circumstances.
[41]
The prohibition in section 26(3) is given effect to through
the enactment of PIE. This Act goes further and enjoins the
courts
to order an eviction only “if it is of the opinion that
it is just and equitable to do so, after considering all the relevant
circumstances” as contemplated in section 4(6) and (7)
[28]
and section 6(1).
[29]
[42]
This Court in
Port Elizabeth Municipality
[30]
emphasised the new approach that courts must adopt in eviction
matters. A court must take an active role in adjudicating
such
matters. As this Court stated:
“The court is
thus called upon to go beyond its normal functions and to engage in
active judicial management according to
equitable principles of an
ongoing, stressful and law-governed social process. This has
major implications for the manner
in which it must deal with the
issues before it, how it should approach questions of evidence, the
procedures it may adopt, the
way in which it exercises its powers and
the orders it might make. The Constitution and PIE require
that, in addition to
considering the lawfulness of the occupation the
court must have regard to the interests and circumstances of the
occupier and
pay due regard to broader considerations of fairness and
other constitutional values, so as to produce a just and equitable
result.”
[31]
[43]
The role played by a court in such matters was elucidated
further in other cases. As a starting point, this Court in
Machele
held that “[t]he application of PIE is not
discretionary. Courts must consider PIE in eviction cases.”
[32]
Furthermore, this Court in
Pitje
held that courts are
not allowed to passively apply PIE and must “probe and
investigate the surrounding circumstances”.
[33]
[44]
The nature of the enquiry under section 4 of PIE was examined
in the case of
Changing Tides.
[34]
In summary, it was held that there are two separate enquires
that must be undertaken by a court:
“First, it
must decide whether it is just and equitable to grant an eviction
order having regard to all relevant factors.
Under section 4(7)
those factors include the availability of alternative land or
accommodation. The weight to be attached
to that factor must be
assessed in the light of the property owner's protected rights under
section 25 of the Constitution, and
on the footing that a limitation
of those rights in favour of the occupiers will ordinarily be limited
in duration. Once
the court decides that there is no defence to
the claim for eviction and that it would be just and equitable to
grant an eviction
order, it is obliged to grant that order.”
[35]
[45]
The second enquiry, which the court must undertake before
granting an eviction order, is to consider—
“what justice
and equity demand in relation to the date of implementation of that
order and it must consider what conditions
must be attached to that
order. In that second enquiry it must consider the impact of an
eviction order on the occupiers
and whether they may be rendered
homeless thereby or need emergency assistance to relocate elsewhere.
The order that it grants
as a result of these two discrete
enquiries is a single order. Accordingly, it cannot be granted
until both enquiries have
been undertaken and the conclusion reached
that the grant of an eviction order, effective from a specified date,
is just and equitable.
Nor can the enquiry be concluded until
the court is satisfied that it is in possession of all the
information necessary to
make both findings based on justice and
equity.”
[36]
[46]
As is apparent from the nature of the enquiry, the court will
need to be informed of all the relevant circumstances in each case
in
order to satisfy itself that it is just and equitable to evict and,
if so, when and under what conditions. However, where
that
information is not before the court, it has been held that this
enquiry cannot be conducted and no order may be granted.
[37]
[47]
It deserves to be emphasised that the duty that rests on the
court under section 26(3) of the Constitution and section 4 of
PIE goes beyond the consideration of the lawfulness of the
occupation. It is a consideration of justice and equity in
which
the court is required and expected to take an active role. In
order to perform its duty properly the court needs to have all
the
necessary information. The obligation to provide the relevant
information is first and foremost on the parties to the
proceedings.
As officers of the court, attorneys and advocates must furnish
the court with all relevant information that
is in their possession
in order for the court to properly interrogate the justice and equity
of ordering an eviction. This
may be difficult, as in the
present matter, where the unlawful occupiers do not have legal
representation at the eviction proceedings.
In this regard,
emphasis must be placed on the notice provisions of PIE, which
require that notice of the eviction proceedings
must be served on the
unlawful occupiers and “must state that the unlawful occupier .
. . has the right to apply for legal
aid”.
[38]
[48]
The court will grant an eviction order only where: (a) it has
all the information about the occupiers to enable it to decide
whether
the eviction is just and equitable; and (b) the court is
satisfied that the eviction is just and equitable having regard to
the
information in (a). The two requirements are inextricable,
interlinked and essential. An eviction order granted in the
absence of either one of these two requirements will be arbitrary. I
reiterate that the enquiry has nothing to do with the
unlawfulness of
occupation. It assumes and is only due when the occupation is
unlawful.
[39]
[49]
Where occupiers are not represented, the Supreme Court of
Appeal in
Changing Tides
has provided some additional
guidance:
“Where
[unlawful occupiers] are not represented, courts may consider issuing
a rule nisi and causing it to be served on the
occupiers (and if it
is not present, the local authority), together with a suitably worded
notice explaining the right to temporary
emergency accommodation, how
they can access such accommodation, and inviting them to come to
court to express their views on that
issue at least.”
[40]
[50]
To this I would add that the court should explain to the
unlawful occupiers their right to apply for legal aid and where
appropriate
direct them to approach a named legal aid clinic with a
given address.
[41]
[51]
In brief, where no information is available, or where only
inadequate information is available, the court must decline to make
an
eviction order. The absence of information is an irrefutable
confirmation of the fact that the court is not in a position
to
exercise this important jurisdiction.
How the High Court approached its
duties
[52]
Was the High Court entitled to accept, in the light of the
circumstances that prevailed then, that there was effective consent
and
waiver? Not if the Court appreciated the extent of the
obligation on it to consider all the relevant factors in order to
determine whether it was just and equitable to grant the eviction.
The just and equitable enquiry is an innovation under the
Constitution and PIE, which requires the Court to be proactive to
establish the relevant facts. At the very least, if the
Court
was aware of its constitutional duties, it would have realised that
it did not have all the relevant facts before it and
would not have
granted the eviction.
[53]
The High Court that granted the eviction order held that, once
the parties had reached agreement, the mandate of the Court to
determine
the issues was terminated (
functus officio
).
[42]
In this regard, the Court did not apply PIE as it was enjoined to do.
It took a passive approach to the eviction proceedings
and
assumed, incorrectly, that where there is consent to eviction the
Court is relieved of its duties under PIE.
[54]
Although the Court was faced with a purported agreement this
did not absolve it of its duties under PIE. The application of
PIE is mandatory,
[43]
and courts are enjoined to be “of the opinion that it is just
and equitable” to order an eviction.
[44]
It is clear that the opinion to be formed is that of the
courts, not the respective parties. Accordingly, a court is
not
absolved from actively engaging with the relevant circumstances where
the parties purport to consent. PIE enjoins courts
to balance
the interests of the parties before it and to ensure that if it is to
order an eviction, it would be just and equitable
to do so. Without
having regard to all relevant circumstances including, but not
limited to, a purported agreement, the court
will not have satisfied
the duties placed upon it by PIE.
[45]
These duties arise even in circumstances where parties on both sides
are represented and a comprehensive agreement is placed
before the
court. In that event, it may well be that the court is able to
form the requisite opinion from perusing the agreement
and the
affidavits before it and, where necessary, engaging the legal
representatives to clarify any remaining issues.
[55]
It is evident that the High Court that granted the eviction
erred in assessing what it saw as the applicants’ consent. It
accepted the factual consent without conducting an enquiry to
establish its validity and legal effectiveness. Furthermore,
it
failed to appreciate that the duty to conduct the enquiry is that of
the court, which is obliged to be proactive in gathering
information
about all the relevant circumstances, considering that information
and arriving at a just and equitable order in the
circumstances of
each case. The High Court thus failed to probe the matters
that it was statutorily enjoined to do.
[56]
In dismissing the application to rescind, Adams AJ found that
the difficulty in this case was that the applicants were represented
at court when the eviction order was granted.
[46]
In these circumstances, it was held that “they were fully
entitled to canvas all the relevant circumstances and to
bring same
to the attention of the Court”.
[47]
In other words, the High Court regarded the presence of the
appearer applicants and Mr Ngubane as excusing it from making
the necessary enquiry. The High Court erred as the
applicants were, as a matter of fact, not legally represented in
the
eviction proceedings. In addition, Mr Ngubane, who confirmed
that the applicants had agreed to the eviction order, did
not have a
mandate to do so, nor was he one of the applicants. The
High Court equally failed to appreciate the proactive
role that
a court considering an eviction application is called upon to play as
set out above.
[57]
Furthermore, Adams AJ accepted that the Court that had granted
the eviction order did not conduct an enquiry as enjoined by the
Constitution and PIE. That should have been the end of the
enquiry and a sufficient factor to justify rescission. In
reasoning further that, even if the eviction court had conducted the
requisite enquiry, it would still have been satisfied that
the
eviction was just and equitable, the Court committed a further
error. This is because on the facts before it homelessness
was
an undisputed risk. An order that will give rise to
homelessness could not be said to be just and equitable, unless
provision had been made to provide for alternative or temporary
accommodation. That risk triggered the duty to join the City
as
the authority that would have to take reasonable measures within its
available resources to alleviate homelessness.
Joinder of the local authority
[58]
On the issue of joinder of the local authority, the High Court
in the eviction proceedings held that this was not always necessary
and that, in this case, the non joinder made no difference as
the eviction order was agreed upon between the parties.
[48]
[59]
It is necessary at this point to discuss the effect of this
Court’s judgment in
Blue Moonlight.
[49]
The Court was called upon to decide whether it was reasonable for the
local authority to provide temporary emergency accommodation
only to
those occupants who were evicted from properties owned by the local
authorities and not to occupants evicted from private
property. This
Court held that it was unreasonable to differentiate between these
two groups.
[50]
The effect is that the local authority has a duty to provide
temporary emergency accommodation to all persons being evicted
who
have no alternative accommodation.
[51]
[60]
This duty must be read together with section 4(7) of PIE,
which provides that one of the circumstances which may be relevant to
the just and equitable enquiry is “whether land has been made
available or can reasonably be made available by a municipality
or
other organ of state or another land owner for the relocation of the
unlawful occupier”.
[61]
It follows that where there is a risk that homelessness may
result, the availability of alternative accommodation becomes a
relevant
circumstance that must be taken into account.
[52]
A court will not be able to decide the justice and equity of an
eviction without hearing from the local authority upon which
a duty
to provide temporary emergency accommodation may rest. In such
an instance the local authority is a necessary party
to the
proceedings. Accordingly, where there is a risk of
homelessness, the local authority must be joined.
[53]
[62]
On the facts, it is apparent that there is a risk of
homelessness resulting from the granting of the eviction order.
The risk
of homelessness triggered the City’s duty to provide
temporary emergency accommodation. This accordingly
necessitated
the joinder of the City.
[54]
Had the High Court probed and investigated the surrounding
circumstances this would have become apparent, even in the face
of a
purported consent.
“
Valid defence”
[63]
There was some debate about the meaning of a “valid
defence” in terms of PIE during the hearing with reference to
Changing Tides
wherein Wallis JA stated:
“Under
section 4(8) [the court] is obliged to order an eviction ‘if
the . . . requirements of the section have been
complied with’
and no valid defence is advanced to an eviction order. The
provision that no valid defence has been
raised refers to a defence
that would entitle the occupier to remain in occupation as against
the owner of the property, such as
the existence of a valid
lease.”
[55]
[64]
It is apparent that the discussion of “valid defence”
is in reference to section 4(8)
[56]
and not section 4(6) or (7). Furthermore, read in context, the
Supreme Court of Appeal does not exclude other possible defences
and
does not move away from the settled position that the court must come
to a decision that is just and equitable to all parties
to evict.
[65]
It follows that where it is unjust or inequitable to evict,
the unlawful occupiers have a defence, and no eviction can be
ordered.
This is so because in terms of PIE, a court may order
an eviction only if it is just and equitable. Accordingly, a
defence
directly concerning the justice and equity of an eviction,
not necessarily the lawfulness of occupation, must be taken into
account
when considering all relevant circumstances. To limit
the enquiry under section 4(6) and (7) to the lawfulness of
occupation
would undermine the purpose of PIE and be a reversion to
past unjust practices under the Prevention of Illegal Squatting
Act.
[57]
The enquiry is whether it is just and equitable to evict. This
is a more expansive enquiry than simply determining
rights of
occupation.
[58]
[66]
It is clear that even purported consent by the parties does
not absolve a judicial officer from her or his duties in terms of
PIE.
This does not mean that a court is precluded from making a
settlement agreement an order of court where that order will result
in eviction. As discussed above, PIE enjoins courts to only
make an eviction order after having considered all the relevant
circumstances and satisfying itself that it is just and equitable to
do so. When faced with a settlement agreement, a court
may take
this into account as one of the relevant circumstances in its just
and equitable interrogation. In this instance,
the court must
as a first step be satisfied that the parties freely, voluntarily and
in full knowledge of their rights agree to
the eviction. However,
the enquiry does not end there. Courts must be alive to the risk of
homelessness and the issue of
joining the local authority to
discharge any duties it may have.
[67]
All of this may appear unduly burdensome but it is necessary
if one has regard to the fundamental importance that a person’s
home has to the realisation of almost all human rights.
[59]
More importantly, the procedure is constitutionally enshrined
and legislatively enacted.
Should the eviction order be
rescinded?
[68]
For
the purposes of rule 42(1)(a), one must distinguish the position of
the four appearer applicants from that of the 180 absent
applicants.
As for the 180 absent applicants, as mentioned above, neither
Mr Ngubane nor the appearer applicants
[60]
had a mandate to consent to an eviction on their behalf. Therefore,
they were absent for purposes of rule 42. Whether
the order was
granted in error will be considered below.
[69]
As mentioned above, the High Court did not discharge its duty
to enquire into all of the relevant circumstances. This
resulted
in the Court being unaware of essential issues of fact when
granting the order.
[61]
The Court was for instance not aware that there were 180 occupants
who were absent when it granted the eviction order. The
Court
was further not aware that those who purported to confirm the
agreement on the side of the applicants had no mandate to bind
the
absent 180 applicants. The basis for granting the eviction order was
that all the parties had consented thereto. The
180 absent
applicants had however not consented thereto and were not bound by
anybody present in Court. The eviction order was
thus erroneously
granted in the absence of the 180 applicants.
[70]
Rule 42 therefore provides an adequate basis to set aside the
eviction order, in so far as it relates to the 180 absent applicants.
[71]
As for the appearer applicants, who were not absent for the
purposes of rule 42,
iustus
error (just mistake) is a ground
at common law in terms of which they may seek rescission of the
order. The discretion of
the Court in granting rescission at
common law is fairly wide.
[62]
[72]
In
Gollach & Gomperts
, the Court stated:
“It appears
to me that a
transactio
is most closely equivalent to a
consent judgment. . . . Such a judgment could be
successfully attacked on
the very grounds which would justify
rescission of the agreement to consent to judgment. I am not aware of
any reason why
iustus error
should not be a good ground for
setting aside such a consent judgment, and therefore also an
agreement of compromise, provided
that such error vitiated true
consent and did not merely relate to motive or to the merits of a
dispute which it was the very purpose
of the parties to
compromise.”
[63]
[73]
Although the appearer applicants factually signified consent
to the eviction order, their consent was not informed. It was
thus not valid. The basis of granting the order against them
was that they had validly consented thereto. In the absence
of
valid consent, there was no procedural entitlement to the eviction
order. The eviction order was thus granted against
them in
error. The appearer applicants’ lack of knowledge of
their rights vitiated true consent.
[64]
[74]
Once
iustus
error is established a judgment by consent
may be set aside.
[65]
It will be established where there is “good and sufficient
cause”, which entails the consideration of (a) the
reasonableness of the explanation proffered by the applicant of the
circumstances in which the consent was entered; (b) the
bona fides
of the application; and (c) the
bona fides
of the defence on
the merits of the case which
prima facie
carries some prospect
of success.
[66]
[75]
The respondents contended that the applicants failed to
establish “sufficient cause” for rescission of the
consent order
at common law; and as a result, the High Court’s
finding to this extent is correct.
[67]
Was there “good and sufficient cause”? Firstly,
regarding the reasonableness of the explanation proffered
by the
applicants, the circumstances under which the consent order was
granted have been discussed in detail above. The crux
is that
the applicants were unrepresented and uninformed when they consented
to the eviction order. In the circumstances,
their explanation
is reasonable.
[76]
Secondly, the application was
bona fide
for the
following reason: an eviction was granted against the applicants
which, if unchallenged, would have been executed rendering
them
homeless. In these circumstances, it was not unreasonable for
them to bring the rescission application and this appeal
before us.
Thirdly, all of the applicants have valid defences to the eviction,
namely, (a) the non joinder of the City
in circumstances where
the eviction would result in homelessness and (b) the violation of
their rights under section 26(3) of the
Constitution, and PIE. The
applicants have thus presented a coherent case which satisfies the
requirement of good and sufficient
cause for
iustus
error. As
there was no legally valid consent, the consent order was granted in
error.
[77]
On the facts, there is therefore a good case for rescission
based on
iustus
error. There is therefore a basis for
granting rescission of the eviction order in respect of the appearer
applicants at common
law.
[78]
Accordingly, on the basis of rule 42(1)(a) and the common law,
the eviction order made purportedly by agreement between the parties
falls to be rescinded.
Remedy
[79]
The applicants have appealed against the judgment and order of
Adams AJ, in which rescission of the Khumalo J order was refused.
When considering remedy this Court seeks to balance the interests of
the land owner with those of the occupiers. The rights
on both
sides of the scale enjoy protection under sections 25 and 26 of the
Constitution respectively.
[80]
The submission of the respondents that the investment of the
owner in the property should not be sterilised is a valid and weighty
consideration. Mr Maseko has invested proceeds of his pension
in the property to revitalise urban residential premises. He
runs the risk of losing his investment and had to be assisted on a
pro bono
basis to present his case before this Court.
The effect of PIE is not and should not be to effectively
expropriate the rights
of the landowner in favour of unlawful
occupiers.
[68]
The landowner retains the protection against arbitrary
deprivation of property. Properly applied, PIE should serve
merely to delay or suspend the exercise of the landowner’s full
property rights until a determination has been made whether
it is
just and equitable to evict the unlawful occupiers and under what
conditions.
[69]
[81]
The availability of alternative land or accommodation is a
relevant consideration to both enquiries into what is just and
equitable.
[70]
These are considerations which should, as far as possible, be
resolved without undue delay to avoid the seeping in of unintended
consequences that may cause irreversible prejudice. In order to
balance the interests of the respondents, particularly those
of
Mr Maseko, it would have been ideal for this Court to grant a
remedy that would bring finality to the matter. Regrettably,
without the City before us, it is not possible to grant a just and
equitable remedy that will bring finality to the matter.
[82]
Accordingly, it is necessary to remit the matter to the High
Court with an express provision that the matter be dealt with on an
expedited basis. For this purpose it is necessary for this
Court to join the City to the proceedings,
mero motu
(of one’s
own accord)
,
in order to ensure that all the relevant parties
are before the High Court.
[71]
On the information before this Court, it would appear that the main
and possibly only outstanding consideration for a just
and equitable
order is the resolution of the problem of potential homelessness that
would result from the eviction. The City
has a duty to respond
appropriately and expeditiously. The order below is along the
lines of that which was made in
Shorts Retreat
.
[72]
Costs
[83]
The applicants initially sought costs but stated in Court that
they would no longer be seeking a costs order. The respondents
similarly do not seek costs against the applicants and ask that they
not be mulcted with an adverse costs order. These submissions
are reasonable. In light of this, I would make no order as to costs.
Order
[84]
In the result, I make the following order:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order of Adams AJ dated 12 November 2015 is set aside and
substituted with the following:
“The eviction
order granted by Khumalo J on 10 September 2013 is rescinded.”
4.
The matter is remitted to the High Court of South Africa, Gauteng
Local Division, Johannesburg
(High Court) with the direction that the
matter be case-managed and dealt with on an expedited basis.
5.
The City of Johannesburg is joined as a further respondent to the
proceedings in the High Court.
6.
The applicants are directed to serve on the City of Johannesburg,
within five days of this order,
a copy of the record filed in this
Court and a copy of this judgment and order.
7.
The City of Johannesburg is directed to file a report with the High
Court, confirmed on affidavit
within 30 days of receiving the
documents from the applicants in terms of paragraph 6, on what steps
it has taken and what steps
it intends or is able to take in order to
provide alternative land or emergency accommodation to the applicants
in the event of
their being evicted and when the alternative land or
accommodation can be provided.
8.
The applicants and the respondents may, within 15 days of delivery of
the City of Johannesburg’s
report, file affidavits in response
to the report.
9.
No order is made as to costs.
For the
Applicants:
S Wilson and F Hobden instructed by SERI Law Clinic
For the First and Second Respondents:
A W Pullinger instructed by Vermaak & Partners Inc Attorneys
L Nkosi-Thomas SC and L Nyangiwe at the request of the Court
For the
Amicus
Curiae
:
S Pudifin-Jones and I Veerasamy instructed by Legal Resources Centre
[1]
19 of 1998.
[2]
Section 4(2) provides: “At least 14 days before the hearing of
the proceedings contemplated in subsection (1), the court
must serve
written and effective notice of the proceedings on the unlawful
occupier and the municipality having jurisdiction”.
[3]
Section 73
of the
Local Government: Municipal Structures Act 117 of
1998
creates ward committees.
[4]
Occupiers of Erven 87 and 88 Berea Township
v Frederick
N.O
[2015] ZAGPJHC 271 (Adams AJ judgment).
[5]
Quoted below in n 13.
[6]
City of Johannesburg v Changing Tides 74 (Pty) Ltd
[2012]
ZASCA 116
;
2012 (6) SA 294
(SCA);
2012 (11) BCLR 1206
(SCA)
(
Changing Tides
) at para 12.
[7]
The section provides that: “Everyone has the right to have any
dispute that can be resolved by the application of law decided
in a
fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum”.
[8]
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC
7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 23.
[9]
Dies non
means “non (court) days”. This
Court issued directions on 18 November 2016 specifying
dies non
over the Christmas period.
[10]
Machele v Mailula
[2009] ZACC 7
;
2010 (2) SA 257
(CC);
2009
(8) BCLR 767
(CC) at para 26.
[11]
See
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015]
ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at paras 29-30.
[12]
Rule 42 of the Uniform Rules must be read together with rule 29 of
the Constitutional Court Rules.
[13]
Rule 42(1)(a) provides as follows:
“The court may, in addition to
any other powers it may have,
mero motu
or upon the
application of any party affected, rescind or vary:
(a) An order or
judgment erroneously sought or erroneously granted in the absence of
any party affected thereby.”
[14]
Lodhi 2 Properties Investment CC v Bondev Developments
[2007]
ZASCA 85
;
2007 (6) SA 87
(SCA) at paras 24-5.
[15]
Ntlabezo v MEC for Education, Culture and Sport, Eastern Cape
2001 (2) SA 1073
(TkH).
[16]
Id at1080-1.
[17]
See [8].
[18]
The Unlawful Occupiers of Erven 87 and 88 Berea v De Wet N.O.
Christiaan Frederick
(unreported) judgment of the High Court of
South Africa, Gauteng Local Division, Johannesburg, Case No
2013/24254 (Khumalo J judgment)
at para 38 where the Court
finds that the appearer applicants stood before the Court and
themselves confirmed that the order,
as per its terms, was agreed
upon.
[19]
See
Laws v Rutherford
1924 AD 261
at 263 and
Mohamed v
President of the Republic of South Africa
[2001] ZACC 18
;
2001
(3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at para 62.
[20]
Id.
[21]
Section 26(3) of the Constitution.
[22]
Changing Tides
above n 6 at para 38.
[23]
See sections 4(6)-(7) and 6(1) of PIE.
[24]
City of Johannesburg Metropolitan Municipality v Blue Moonlight
Properties 39 (Pty) Ltd
[2011] ZACC 33
;
2012 (2) SA 104
(CC);
2012 (2) BCLR 150
(CC) (
Blue Moonlight
) at para 96.
[25]
See
Laws
and
Mohamed
above n 19.
[26]
Khumalo J judgment above n 18 at para 38.
[27]
Dealt with in [22] to [38].
[28]
These sub-sections provide that:
“(6) If an
unlawful occupier has occupied the land in question for less
than
six months at the time when the proceedings are initiated, a court
may grant an order for eviction if it is of the opinion
that it is
just and equitable to do so, after considering all the relevant
circumstances, including the rights and needs of the
elderly,
children, disabled persons and households headed by women.
(7) If
an unlawful occupier has occupied the land in question for
more than
six months at the time when the proceedings are initiated, a court
may grant an order for eviction if it is of the
opinion that it is
just and equitable to do so, after considering all the relevant
circumstances, including, except where the
land is sold in a sale of
execution pursuant to a mortgage, whether land has been made
available or can reasonably be made available
by a municipality or
other organ of state or another land owner for the relocation of the
unlawful occupier, and including the
rights and needs of the
elderly, children, disabled persons and households headed by women.”
[29]
This sub-section provides:
“(1) An organ
of state may institute proceedings for the eviction of an
unlawful
occupier from land which falls within its area of jurisdiction,
except where the unlawful occupier is a mortgagor and
the land in
question is sold in a sale of execution pursuant to a mortgage, and
the court may grant such an order if it is just
and equitable to do
so, after considering all the relevant circumstances, and if—
(a) the
consent of that organ of state is required for the erection of
a
building or structure on that land or for the occupation of the
land, and the unlawful occupier is occupying a building or
structure
on that land without such consent having been obtained; or
(b)
it is in the public interest to grant such an order.”
[30]
Port Elizabeth Municipality
above n 8 at para 36.
[31]
Id.
[32]
Machele
above n 10 at para 15.
[33]
Pitje v Shibambo
[2016] ZACC 5
; 2016 JDR 0326 (CC);
2016 (4)
BCLR 460
(CC) at para 19.
[34]
Changing Tides
above n 6 at paras 11–25.
[35]
Id at para 25.
[36]
Id.
[37]
Port Elizabeth Municipality
above n 8 at paras 32 and 58-60;
and
Changing Tides
above n 6 at paras 26-7.
[38]
Section 4(5) read with section 4(2).
[39]
Port Elizabeth Municiplaity
above n 8 at para 32 where Sachs
J stated: “The court is not resolving a civil dispute as
to who has rights under
land law; the existence of unlawfulness
is the foundation for the enquiry, not its subject-matter.”
[40]
Changing Tides
above n 6 at para 48.
[41]
See generally
Nkuzi Development Association v Government of the
Republic of South Africa
[2001] ZALCC 31; 2002 (2) SA 733 (LCC).
[42]
Khumalo J judgment above n 18 at para 36.
[43]
Machele
above n 10 at para 15.
[44]
Section 4(6) and (7) of PIE.
[45]
The Occupiers, Shulana Court, 11 Hendon Road, Yeoville,
Johannesburg v Steele
[2010] ZASCA 28
;
2010 (9) BCLR 911
(SCA)
(
Shulana Court
) at paras 11-5; and
Changing Tides
above n 6 at para 26.
[46]
Adams AJ judgment above n 4 at para 39.
[47]
Id.
[48]
Khumalo J judgment above n 18 at para 39.
[49]
Blue Moonlight
above n 24.
[50]
Id at para 95.
[51]
Id at para 96-7.
[52]
See
Shulana Court
above n 45 at para 13 and
Changing Tides
above n 6 at para 38.
[53]
See
Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat,
Pietermaritzburg v Daisy Dear Investments (Pty) Ltd
[2009] ZASCA
80
;
2010 (4) BCLR 354
(SCA) (
Shorts Retreat
) at paras 11-4;
Shulana Court
above n 45 at paras 13 6; and
Changing
Tides
above n 6 at para 38.
[54]
See
Blue Moonlight
above n 24 at para 96;
Changing Tides
id at paras 37–8.
[55]
Changing Tides
id at para 12.
[56]
The sub-section reads as follows:
“If the court is satisfied that
all the requirements of this section have been complied with and
that no valid defence has
been raised by the unlawful occupier, it
must grant an order for the eviction of the unlawful occupier, and
determine -
(a) a just and equitable date on which the
unlawful occupier must vacate the land under the circumstances;
and
(b) the date on which an eviction order may be
carried out if the unlawful occupier has not vacated the land
on the
date contemplated in paragraph (a).”
[57]
52 of 1951. See the discussion of this Act in
Port Elizabeth
Municipality
above n 8 at paras 8-13.
[58]
See
Port Elizabeth Municipality
id at para 37 where Sachs J
stated that:
“Thus, PIE expressly requires the
court to infuse elements of grace and compassion into the formal
structures of the law.
It is called upon to balance competing
interests in a principled way and to promote the constitutional
vision of a caring society
based on good neighbourliness and shared
concern. The Constitution and PIE confirm that we are not islands
unto ourselves. The
spirit of
ubuntu
, part of the deep
cultural heritage of the majority of the population, suffuses the
whole constitutional order. It combines individual
rights with a
communitarian philosophy. It is a unifying motif of the Bill of
Rights, which is nothing if not a structured, institutionalised
and
operational declaration in our evolving new society of the need for
human interdependence, respect and concern.”
[59]
Id at para 17.
[60]
[37].
[61]
See
Nyingwa v Moolman
1993 (2) SA 508
(TK) at 510D-G;
Naidoo
v Matlala NO
2012 (1) SA 143
(GNP) at 153B-C; and
Rossiter v
Nedbank
Ltd
[2015] ZASCA 196
at para 16.
[62]
De Wet v Western Bank Ltd
1979 (2) SA 1031
(A) at 1042F-H;
Hafejee v Bytes Technology Group South Africa (Pty) Ltd
[2016] ZAWCHC 61
; 2016 JDR 0928 (WCC) at para 5;
Vilvanthan
v Louw N.O.
[2010] ZAWCHC 49
;
2010 (5) SA 17
(WCC);
[2011] 2 All
SA 331
(WCC) at 20F-I; and
HDS Construction (Pty) Ltd v Wait
1979 (2) SA 298
(E) at 300.
[63]
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills &
Produce Co (Pty) Ltd
1978 (1) SA 914
(A) (
Gollach &
Gomperts
) at 922H-923A.
[64]
Id.
[65]
Georgias v Standard Chartered Finance Zimbabwe Ltd
2000 (1)
SA 126
(ZS) confirmed in
Ntlabezo
above n 15 at 1081A-E.
[66]
Georgias
id at 132G-I.
[67]
Government of the Republic of Zimbabwe v Fick
[2013] ZACC 22
;
2013 (5) SA 325 (CC);
2013 (10) BCLR 1103
(CC) at paras 85-6
and 89; and
Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at 765C-D.
[68]
Ndlovu v Ngcobo; Bekker v Jika
[2002] ZASCA 87
;
2003 (1) SA
113
(SCA) at para 17.
[69]
Id.
[70]
Changing Tides
above n 6 at para 21.
[71]
Shorts Retreat
above n 53 at para 12.
[72]
Id at para 1.