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[2015] ZAWCHC 97
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Denel Soc Limited v Persons whose Identities are to the applicants unkown and who have attempted or are threatening to unlawfully occupy ERF 52676, Khayelitsha; In re: Jack and Others v Denel Soc Limited and Others; In re: Denel Soc Limited v Unlawful Occupiers of ERF 52676, Khayelitsha and Another (6084/15, 6143/15) [2015] ZAWCHC 97 (24 June 2015)
REPUBLIC OF SOUTH AFRICA
In the High Court of
South Africa
(Western Cape Division,
Cape Town)
CASE NO: 6084/15
DATE: 24 JUNE 2015
In the matter between:
DENEL SOC
LIMITED
...........................................................................................................
Applicant
And
PERSONS WHOSE IDENTITIES
ARE TO THE APPLICANTS
UNKNOWN AND WHO HAVE
ATTEMPTED OR ARE THREATENING
TO UNLAWFULLY OCCUPY ERF
52676,
KHAYELITSHA
..........................................
Respondent
And
XOLANI JACK AND EIGHTY
APPLICANTS LISTED IN ANNEXURE "A"
TO THE APPLICANT'S NOTICE
OF
COUNTER-APPLICATION One
Hundred and
Ten
...........................................................
Applicants
And
DENEL SOC
LIMITED
...............................................................................................
First
Respondent
STATION COMMANDER
NOLUNGILE POLICE STATION,
KHAYELITSHA SHERIFF OF
KHAYELITSHA
................................................
Second
Respondent
MINISTER OF
POLICE
..........................................................................................
Fourth
Respondent
CITY OF CAPE
TOWN
..............................................................................................
Fifth
Respondent
CASE NO: 6143/15
DENEL SOC
LIMITED
...................................................................................................................................
Applicant
And
THE UNLAWFUL OCCUPIERS OF
ERF 52676, KHAYELITSHA
......................
First
Respondent
THE CITY OF CAPE
TOWN
.................................................................................
Second
Respondent
JUDGMENT:
DELIVERED ON 24 JUNE 2015
MANCA AJ:
1.
The
applicant is Denel Soc Limited ("Denel").
2.
Denel
owns vacant land situated in Khayelitsha, known as Erf 52676,
Khayelitsha ("the property"). Denel has been
negotiating with the City of Cape Town ("the City") and the
National Housing Development Agency for some time with a
view to
selling the property. If that is done it is anticipated that
the City and/or the Housing Development Agency could
develop low cost
housing on the property.
3.
The
property, which is adjacent to an established informal settlement in
Khayelitsha known as T Section, is fenced off and Denel
employs a
private security company, West Run Security ("West Run") in
order to secure the property. One of West
Run's principal tasks
is to guard against any unlawful invasion of the property.
4.
There
are three applications before this Court, all of which have their
genesis in an invasion of the property by a large number
of people on
Monday, 6 April 2015.
5.
In
the first application Denel seeks an order interdicting and
restraining an unknown number of persons from,
inter
alia
, entering upon or commencing to
occupy the property and from commencing to erect or occupy any
structure on the property ("the
interdict application").
6.
On
the evening of 7 April 2015 Denel obtained an interim interdict,
in the form of a rule
nisi
,
on the terms sought by it. The interim order, however, made it
clear that it was not to apply to persons in occupation of
the
property when the interdict application was launched. The
interdict application is opposed by a group of persons who
allege
that they were in occupation of the property and were unlawfully
removed from the property subsequent to the implementation
of the
interim interdict granted under the interdict application. For
the sake of convenience I will refer to these persons
as the
respondents.
7.
The
second application is a spoliation application which the respondents
have brought by way of a counter-application to the interdict
application. In that application the respondents seek an order
directing their return to the property and the reconstruction
of
their dwellings which they allege were demolished pursuant to the
implementation of the interim order. They also seek
an order
declaring that the conduct and actions of Denel, the Sheriff of
Khayelitsha ("the Sheriff"), the City
and the South
African Police ("the Police") in demolishing and/or
dismantling the informal structures erected by them
on the property
to be unlawful. The Sheriff, the Police and the City have been
joined as respondents in the spoliation application.
The
spoliation application is opposed by Denel, the City and the Police.
The Sheriff, who has filed an affidavit, abides
the Court's decision.
8.
In
the third application Denel seeks the eviction of persons who breach
the interdict by entering or re-entering and/or occupying
the
property ("the eviction application"). A rule
nisi
operating as an interim interdict was granted on 10 April 2015
and subsequently extended. It is common cause that when
the
interdict application was launched there was no one in occupation of
the property other than Denel. That remains the
position.
9.
All of the applications were consolidated
pursuant to an order of this Court dated 21 April 2015.
The purpose of a consolidation
is, in broad terms, to have issues
which are substantially similar tried at a single hearing and to
ensure that one finding concerning
a factual dispute involving a
number of parties can be made.
[1]
10.
Answering
and replying affidavits have been delivered in all the applications.
11.
In
my view, the real issue between the parties is whether the
respondents were unlawfully dispossessed of the property when the
interim order in the interdict application was implemented on 8 April
2015.
12.
This
is so because the respondents do not dispute Denel's entitlement to
the interdict but allege that they were not part of the
group of
people who invaded the property on 6 April 2015. The
respondents allege that they had been in occupation of
the property
since February 2015 and that, accordingly, the interdict did not
operate against them. In fact, in their answering
affidavit,
which served as the founding affidavit in the spoliation application,
they conceded that Denel was entitled to protect
its property from
further unlawful occupation. Their whole case was, and is, that
they were in occupation of the property
prior to 6 April 2015
and that they were unlawfully dispossessed on 8 April 2015 when
the interim order was implemented.
13.
It
follows that if the respondents were already in occupation of the
property prior to 6 April 2015 and that they were unlawfully
dispossessed of that property, in contravention of the terms of the
interim order, they will be entitled to an order returning
them to
the property pursuant to their spoliation application. It also
follows that, if they were dispossessed of the property
unlawfully by
the Sheriff and/or the City and/or the Police in purported
implementation of the interim interdict, they will be
entitled to an
order declaring the action of those persons to be unlawful.
14.
The
eviction application, which was launched on 8 April 2015, and in
respect of which an interim interdict operating as a rule
nisi
was granted on 10 April 2015, was launched at a time when there
were no persons occupying the property. The order which
was
granted catered for the prospective unlawful occupation of the
property.
15.
In
my view, if the respondents succeed in their spoliation application,
they will be entitled to return to the property and will
not be
prevented from returning by the eviction order.
16.
The
consolidated application was argued on the papers and none of the
parties sought to refer any of the issues in dispute to oral
evidence.
17.
The consequence is that, to the extent that
Denel and the respondents seek final relief on motion, they both
must, in the event
of conflict, accept the version set up by their
opponent when the latter's allegations are, in the opinion of the
Court, not such
as to raise a real, genuine or
bona
fide
dispute of fact or are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.
[2]
18.
A real and genuine dispute of fact exists
where the Court is satisfied that the party who purported to raise
the dispute had seriously
and unambiguously addressed the disputed
facts. Where a party rests his case on a bald assertion or a
bare denial, in circumstances
where that party must necessarily be
able to provide evidence in support of the allegation on denial, the
Court would generally
have difficulty in finding that the test was
satisfied.
[3]
19.
In
the present case the respondents simply allege, without any further
elaboration whatsoever, that they have been in occupation
of the
property since February 2015. Although there are 110 applicants
in the counter-application, none of them have stated
when in February
2015 they moved onto the property, where they came from, how they
built their houses, who resided in their houses
and how many houses
were on the property when, on their own version, a large number of
people invaded the property on 6 April
2015.
20.
As I have indicated, Denel, the City and
the Police delivered answering affidavits to the spoliation
application. The answering
affidavits delivered by Denel and
the City dealt extensively with the issue of whether or not any of
the respondents had been in
occupation of the property prior to
6 April 2015, as alleged by them.
[4]
The affidavit delivered by the Police dealt with their role during
the period 6 to 8 April 2015.
[5]
21.
All
of these answering affidavits dealt with the issues in great detail
and the affidavits delivered on behalf of the City and the
Police
were not replied to. The affidavits deposed to by the City and
Denel incorporated video footage taken on 7 April
2015 at the
property. Neither the authenticity of the video footage nor the
contents thereof was challenged by the respondents.
Although
the respondents delivered a replying affidavit to Denel's answering
affidavit, the deponent made no attempt to deal with
the factual
issues contained therein and the allegations contained therein
amounted to nothing more than a bare denial of those
issues which
were disputed.
22.
The
picture which emerges from those affidavits is that there were no
persons in occupation of the property prior to 6 April
2015.
West Run regularly patrolled the property and detailed reports were
made on a daily basis of any activity which took
place on the
property which might in any way impinge on its security. There
were no recorded incidents of any persons being
in any sort of
occupation of the property prior to 6 April 2015. This was
confirmed in the affidavit deposed to by Mr
Henry of the City, who
knew the property and regularly patrolled in that area.
23.
By
contrast, it appeared that a large number of people descended on the
property on Monday, 6 April 2012, which was a public
holiday.
24.
These
people entered the property with a view to erecting informal
structures thereon. To this end they began clearing the
ground
by,
inter alia
,
lighting fires and demarcating stands by placing pegs in the ground.
They prevented the Fire Department from putting out
the fires.
25.
Law
enforcement officials from the City and the Police attended at the
property very soon after the first group of people came onto
the
property.
26.
On
7 April Mr West of West Run informed the persons attempting to
occupy the property that they were on the property illegally
and that
they should remove themselves. This was also told to them by
the officer in charge of the SAPS members who were
on the scene.
27.
At
about early evening on 7 April 2015 there were somewhere between
20 to 30 incomplete structures on the property. These
structures were unoccupied and contained no personal possessions.
28.
On
the morning of 8 April 2015 there were approximately 10 to 15
people on the property. At that stage there were approximately
10 structures that had either one, two, three or four side sheets
(made mostly of corrugated iron or wooden planks), together with
a
roof. There were about four structures that had four side
barriers and a roof. None of these structures were occupied
and
there was no furniture in any of the structures. There were
also approximately another 30 structures in various states
of
construction. Some consisted only of four poles, others had one
side sheet and some just had four pegs. None of
these
structures had a roof and were incapable of occupation.
29.
Law
enforcement reconvened at the property on the morning of 8 April
2015. At approximately 09h10 the Sheriff arrived
at the
property and commenced reading out the order to those present and
provided copies to them.
30.
Shortly
thereafter, the City's law enforcement officials moved onto the
property and dismantled all the unoccupied structures.
31.
There
were no occupied structures on the property. The materials were
removed from the site of the invasion to a different
part of the
property identified by Denel and remain there.
32.
In order to succeed in their spoliation
application the respondents must establish that there were in
peaceful and undisturbed possession
of the property and that they
were unlawfully deprived of such possession.
[6]
33.
Having
regard to the facts to which I have referred, there can be no doubt
that the respondents had not been in occupation of the
property since
February 2015, as alleged by them.
34.
Notwithstanding
their evidence to the effect that they were not part of the group of
people who came onto the property on 6 April
2015 and who began
to demarcate stands and erect structures thereon, Mr Twalo, who
appeared for the respondents, argued that the
respondents were
nevertheless in occupation of the property and had been dispossessed
of that occupation by the manner in which
the interim order was
implemented. They were accordingly entitled to protection under
the Prevention of Illegal Eviction
From and Unlawful Occupation of
Land Act ("PIE").
35.
It
is accordingly necessary for me to decide whether the respondents,
who could only have come onto the property during the land
invasion
which commenced on 6 April 2015, were in occupation of the
property and entitled to protection by virtue of the terms
of the
interim order and PIE.
36.
In
Fischer v
Ramahlele
[7]
the SCA held that the mere existence and the intention of the builder
of an informal structure to occupy it is not sufficient to
determine
that such a person is an unlawful occupier and entitled to protection
under PIE. This is because the nature of
the possession upon
which the
mandament van spolie
is based involves factual control as well as the intention to derive
some benefit from the land.
37.
The
facts in this case indicate that from the moment the respondents
entered onto the property they were met, firstly with a presence
of
law enforcement officials who monitored their activities, and then
secondly were told by West Run that their presence on the
property
was illegal and that they should remove themselves.
38.
It
is also clear that during the period 6 April 2015 to 8 April
2015 - when the interim order was implemented - that the
respondents
were in the process of attempting to occupy the property and that
their occupation could not be said to be peaceful,
stable and
undisturbed.
39.
What
the respondents were attempting to do, despite being told that their
conduct was illegal, was to wrest possession of the property
from
Denel.
40.
A person cannot be said to be in occupation
of property when he or she is involved in a resisted process of
trying to assert possession
and the
mandament
van spolie
will not be of assistance to
him or her if the best he or she can prove is an attempt to grab
possession to which there is continued
resistance.
[8]
41.
In
this case, the attempt to grab possession of the property, which met
with resistance from the outset, is not protectable under
the
mandament
.
42.
None
of the persons who came onto the property on 6 April 2015 were,
in any sense, in occupation of the property when the interim
interdict was granted on 7 April 2015 or when the order was
implemented on 8 April 2015.
43.
It
accordingly follows that the spoliation application must fail and
that Denel is entitled to confirmation of the interdict.
44.
It also follows that the Sheriff and the
City did not act unlawfully in removing the structures from the
property.
[9]
45.
The
remaining question is whether or not the eviction order should be
confirmed.
46.
I
am of the view that no legitimate purpose would be served in
confirming the eviction order. If any persons attempt to or
do
occupy the property in the future, the law must take its course and
an anticipatory eviction order will not, in my view, be
binding on an
as yet unknown group of people.
47.
In this regard I point out that, in
deciding whether or not it is just and equitable to grant an eviction
order, a Court must have
regard to the circumstances under which the
unlawful occupier occupied the land, the period that the unlawful
occupier has resided
on the land and the availability to the unlawful
occupier of suitable similar accommodation or land.
[10]
48.
It
goes without saying that I cannot have regard to any of these factors
should I grant an eviction order in anticipation that one
or more of
the respondents, who are not in occupation of the property, may in
the future re-occupy the property. The interim
eviction order
accordingly falls to be discharged.
49.
Denel
launched two striking-out applications during the course of these
proceedings, both of which were argued before me.
The first
striking out application related to photographs annexed to the
respondent's answering affidavit in the interdict application.
The complaint was that the photographs were not properly
authenticated and were thus irrelevant. They second striking
out
application related to the respondents' answering affidavits in
the eviction application. In essence the complaint was that
they had not been properly deposed to and were accordingly not
affidavits in the true sense. Whilst there may well be some
merit to both of those applications, it is unnecessary for me to rule
thereon as my decision in regard thereto will make no difference
to
the result.
50.
In
the circumstances I make the following order:
(1) The interim interdict granted by this Court on
7 April 2015 under Case No. 6084/15 by Samela J and
thereafter extended,
is confirmed.
(2) The spoliation application and the further relief
sought by the respondents in the counter-application under Case No.
6084/15
is dismissed.
(3) The interim eviction order granted by Samela J
on 10 April 2015 under Case No. 6142/15, and thereafter
extended, is
discharged.
(4) The respondents are ordered to pay the costs
occasioned by Denel and the City under Case No. 6084/15, jointly and
severally,
the one paying the other to be absolved, such costs to
include the costs of two counsel, where employed, and the costs
incurred
in the striking out applications.
(5) There is no costs order in Case No.
6142/15.
MANCA AJ
Acting Judge of
the High Court
[1]
Erasmus,
Superior
Court Practice
, at B1-98A and B1-99.
[2]
Wightman t/a JW Construction v Headfour (Pty)
Ltd & Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at paragraph
[12]
.
[3]
Wightman
(
supra
)
at paragraph [13].
[4]
The City asked for costs in the event that the
counter-application was dismissed. The Police did not.
[5]
The affidavit delivered by the Police made it clear that they placed
a monitoring role and did not take part in the removal of
any
structures from the property.
[6]
Nino Bonino v De Lange
1906 TS 120
and
Scoop Industries
(Pty) Ltd v Langlaagte Estate and GM Co Ltd (in Vol Liq)
1948
(1) SA 91 (W).
[7]
2014 (4) SA 614
(SCA) at para [22].
[8]
Mbangi & Others v Dobsonville City Council
1991 (2) SA 380 (W).
[9]
As I have indicated, the Police did not remove
any structures.
[10]
S6(3) of PIE.