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[2015] ZAWCHC 58
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City of Cape Town v Independent Municipal And Allied Workers Union and Others (A295/2014) [2015] ZAWCHC 58 (17 September 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: A295/2014
DATE: 06 MAY 2015
In the matter between:
MR J
WILDEBEEST
.......................................................................................................
First
Appellant
MS K
WILDEBEEST
..................................................................................................
Second
Appellant
And all the other occupiers
And
COMMUNICARE, A NON PROFIT
COMPANY
....................................................
First
Respondent
(REG NO. 05/001590/08)
THE MUNICIPAL
MANAGER
..............................................................................
Second
Respondent
(Goodwood Administration)
JUDGMENT
DELIVERED ON 06 MAY 2015
RILEY, AJ
[1] This is an appeal against the whole
of the judgment of the magistrate sitting at Goodwood, handed down on
21 November 2013,
in terms of which he refused to grant the
appellants condonation and dismissed the appellant’s
application for the rescission
of the eviction order granted on 7
February 2013 with costs. At the hearing of this appeal both the
appellants and the first respondent
applied for condonation for the
late filing of their heads of arguments which condonation was
granted.
[2] The background to this appeal can
be summarized as follows: On 13 April 2006 the first respondent,
Communicare, a Non Profit
Company, an incorporated association not
for gain entered into a written lease agreement with the first and
second appellant in
respect of certain residential premises at
Ruyterwacht. The appellants have three minor children. It is common
cause that the
first appellant is a minister employed by the Rapha
International Ministries, a church in the Elsies River area. Second
appellant
is not employed. Although first appellant’s monthly
salary to assist the chief minister is approximately R3500-00 per
month,
he has not received a salary regularly as the church depends
primarily on income from its congregation and occasional donations
from outside sources. As a result of the irregular payments of his
salary, the first appellant has not been able to pay his personal
expenses, particularly his rent regularly or timeously.
[3] In the founding affidavit of the
first appellant (in the application for condonation and rescission of
the eviction order in
the court a quo), which was confirmed by the
second appellant, first appellant at the outset makes it clear that
when he received
the eviction application, he contacted his attorney
of record, Mr Khan, (“Khan”) with the intention of
opposing the
relief sought by Communicare. Even though they did not
have sufficient funds to pay Khan, Khan nevertheless undertook to
assist
them and allowed them to make the necessary payment
arrangements when they were able to do so. First appellant
understood that
Khan had filed a notice of intention to oppose the
application. Khan subsequently advised him that they would have to
consult
in order to prepare first and second appellants affidavits in
support of the opposition to the relief sought by the first
respondent.
[4] The first appellant further averred
that when he and his family moved into the rental premises, the
floors were beginning to
collapse and there were no outside gates and
walls. The floors in the lounge and bedroom had collapsed. In
addition the ceilings
were also damp.
[5] When the first respondent refused
to attend to the defects after first appellant pointed them out to
it, the first appellant
reported the matter to the Rental Tribunal
who requested that first respondent and first appellant settle the
matter. On 26 May
2011 a representative of the first respondent
attended at the appellant’s home with the view to investigate
‘settlement
terms’. Second appellant was advised that
their case was before the Rental Tribunal regarding inter alia
increased rental
and that first respondent had been advised to enter
into a settlement agreement with tenants whose cases were before the
Tribunal.
[6] It is common cause that the parties
entered into an agreement signed on 26 May 2011 the terms which can
be summarised as follows:
1. First respondent would replace and
erect a fence on the left and in front of the property and erect a
gate for a vehicle entrance.
2. First respondent would fix (temp)
floor panels in the bedroom. House floors to be fixed in the summer
2011/2012.
3. First respondent would clean the
mouldy ceilings.
4. The appellants would arrange a
payment plan with Communicare relating to the matter.
5. The appellants will investigate and
resolve lawyer’s fees.
6. That the rent would not be increased
until the work referred to in paragraphs 1 and 2 of the agreement had
been attended to.
[7] It is further common cause that
this settlement agreement was entered into before the eviction
application was launched.
[8] According to the first appellant he
had also informed the first respondent that his rental had increased
on 26 May 2011. Despite
the terms of the agreement, first appellant
avers that first respondent had not complied with the terms of the
aforesaid settlement
agreement and that the floors on the lounge and
bedrooms are in the same condition and the appellant and his family
were unable
to use the lounge and one of the bedrooms. Appellants
presented photographic evidence and specifically averred that the
repairs
were not effected. According to appellants’, first
respondent has also acted in breach of paragraph 6 of the settlement
agreement in that it has increased the rental contrary to the terms
of the agreement.
[9] First appellant was of the view
that their rental should not have been increased and that the rental
should have been reduced
as they did not have the use and enjoyment
of the entire house and he accordingly disputed the amount owing.
[10] Consequently the appellants deny
that they were in arrears with the rental to the extent as averred by
the first respondent.
First appellant in particular avers that the
first respondent is not entitled in law to charge them the full
rental as first respondent
has not substantially complied with the
settlement agreement in terms of a directive of the Housing Tribunal.
[11] On or about 30 July 2012 the first
respondent brought an ex parte eviction application against the
appellants before the magistrate
at Goodwood, in terms of section
4(5) and 4(2) of the Prevention of Illegal Eviction and Unlawful
Occupation of Land Act 19 of
1998 (“PIE ACT“).
[12] In terms of the notice served on
them, the appellants were notified that they should appear before
court on 23 August 2012
to defend the action, and to bring to the
attention of the court all relevant circumstances which would
establish that the granting
of an eviction order is unfair and
unjust. Appellants were further given notice that if they intended
to oppose the application,
that they should do so before 14 August
2012 and to file their answering affidavits within ten days of such
notice of opposition.
[13] On 22 August 2012 the appellant’s
gave notice of their intention to oppose the eviction application.
According to the
first Notice of Set Down, the eviction application
was set down for hearing on 17 February 2013. It was served on the
correspondents
of the appellant’s attorney of record on 12
December 2012.
[14] On 19/12/2012 a further Notice of
Set Down, with a date of hearing for 7 February 2013, was served on
the correspondent of
the appellant’s attorney of record. It is
not clear why a second notice of the set down was served and filed
and particularly
during a period when it was common knowledge that
most attorneys would close their offices for the Christmas holidays.
[15] It is common cause that on 7
February 2013, a magistrate other than the magistrate who made the
orders which are the subject
matter of this appeal, granted an order
for the eviction of the appellants and their minor children.
[16] After Khan had filed the notice of
opposition, and around the end of December 2012, he informed first
appellant that the hearing
of the eviction matter had been set down
for hearing on 17 February 2013. Khan also informed him that he
would contact first appellant
as soon as he was ready to start
preparing the answering affidavit, but that Khan would be closing his
office for the holidays
in December 2012 and re-open in mid-January
2013. According to first appellant, Khan then informed him towards
the end of January
or early February 2013, that the matter would be
postponed to a date in April 2013 in terms of a directive by the
magistrate that
all opposed matters of Communicare be postponed to
that period.
[17] The first appellant avers that he
was shocked when in and about February the sheriff of the court
served an eviction order
on him which was granted on 7 February 2013.
He contacted Khan immediately and they met to discuss this turn of
events. According
to first appellant, Khan appeared to be equally
shocked and advised him that there was clearly a mistake as according
to him the
matter had been set down for hearing on 17 February 2013
and that when he (Khan) appeared in court in January 2012 he had
understood
the magistrate to mention that all opposed matters of the
first respondent should be set down for April 2013. Khan then
undertook
to speak to first respondent’s attorney and advised
that he would try to apply to set aside the warrant of eviction.
[18] A week or two after this meeting,
first appellant was informed by Khan that he had spoken to first
respondent’s attorney
who had advised him that appellants would
have to apply for the rescission of the judgment and that the first
respondent’s
attorney did not recall the magistrate directing
that the eviction application be set down in April 2013.
[19] What is clear is that Khan must
have misunderstood or misinterpreted the proceedings in court in
January 2013 and that confusion
arose in regard to the set down dates
for the eviction application and it appears that Khan had belatedly
found the second notice
of set down for 7 February 2013 at his
office, which notice had been misplaced.
[20] It is further clear that
notwithstanding the severe financial strain the appellant was
subjected to, he was doing his utmost
best to borrow money from
friends and his employer to pay towards his arrear rent.
[21] What is abundantly clear, is that
as, a lay person, first appellant was not aware that the application
to have the judgment
and order rescinded had to be brought within a
specified time limit in terms of the rules of court, nor did Khan
inform him of
this requirement. On 28 April 2013 Khan advised him
for the first time that since the application ought to have been
brought within
twenty days of the date on which appellants received
the court order, they would have to apply for condonation.
[22] In his ex tempore judgment, the
magistrate found that there was no reason whatsoever that would
justify him granting condonation
and further dismissed the rescission
application.
[23] It is trite law that an applicant
for the rescission of a default judgment must show good cause and
prove that at no time did
he renounce his defence and that he had a
serious intention of proceeding with the case. See Herbstein and Van
Winsen –
Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa 5th ed p715 – 716. According
to the learned
authors, in order to show good cause, an applicant
must give a reasonable explanation for the default, the application
must be
made bona fide and must show that a defence exists to the
plaintiffs claim.
[24] I turn briefly to deal with the
defences raised by the appellants which relate inter alia to the
state of the rented property,
their obligation to pay rent and the
settlement agreement entered into by the parties, as in my view these
issues are all relevant
to the ultimate determination of the eviction
application.
[25] To the extent that the appellants
claim that the amount of rent paid did not accord with the value of
the services provided,
in that the tenant did not obtain complete and
proper beneficial occupation of the property, it appears that there
is support for
the view that in such circumstances, such a lessee is
entitled to a reduction in the rent, has a claim for damages and that
this
would constitute a bona fide defence. See Mpange and Others v
Sithole 2007(6) SA 578(w). In Thompson v Scholtz 1999(1) SA 232
(SCA) at 247A – Nienaber JA stated that:
“Where a lessee is deprived or
disturbed in the use or enjoyment of leased property to which he is
entitled in terms of the
lease, either in whole or in part, he can in
appropriate circumstances be relieved of the obligation to pay
rental, either in whole
or in part; the Court may abate the rental
due by him pro rata to his own enjoyment of the merx. This is true
not only where the
interference with the lessee’s enjoyment of
B the leased property is the result of vis major or casus fortuitus
but also
where it is due to the lessor’s breach of contract,
e.g. because the leased property is not fit for the purpose for which
it was leased for, as in this case, because the performance rendered
by the lessor is incomplete or partial. (See the cases cited
by Piek
and Klein (supra at 380 footnote 112).) The lessee would be entirely
absolved from the obligation to pay rental if he
were C deprived of
or did not receive any usage whatsoever. That would simply be a
manifestation of the exceptio, more particularly
of the first
proposition in BK Tooling (cf Fourie NO en ‘n Ander v
Potgietersrussse Stadsraad 1987(2) SA 921(A).’
See also Cooper
Landlord and Tenant 2 ed at 102-7 and 164 and the authorities quoted
in Mpange and Others v Sithole supra at paragraphs
[67] – [70].
On a consideration of the appellant’s version, it seems to me
that the appellants’ would not have
been required to pay the
amounts over and above the amount of rent as it stood at the date of
the settlement agreement. I pause
to mention that nowhere in the
affidavit deposed to by Vuyani Joel Mkunqwana in support of the
eviction applications, is any mention
made whatsoever of the
complaint to the Rental Tribunal and the subsequent settlement
agreement entered into between the parties.
In my view this
information was most relevant and important, and should have been
placed before the magistrate who heard the original
eviction
application. It is clear that the magistrate who heard the
condonation and rescission application in any event did not
give
proper consideration to the issues raised by appellant’s when
considering the totality of the application.
[26] In considering the reasons
advanced by the magistrate for his ruling, it is necessary to
consider the appellants conduct, i.e.
whether they are wilful, or
negligent or blameless as one of the various considerations which
courts will take into account in
the exercise of their discretion to
determine whether or not good cause is shown. (See De Witts Auto
Body Repairs (Pty) Ltd v
Fedgen Insurance Co Ltd 1994(4) SA 705E).
In determining whether or not good cause has been shown whether an
applicant has given
a reasonable explanation, the court is given a
wide discretion. It is accepted law that the courts discretion must
be exercised
after a proper consideration of all the relevant
circumstances. In Grant v Plumbers (Pty) Ltd 1949(2) SA 470(O),
Brink J was of
the view that a court should not come to the
assistance of a defendant whose default was wilful or due to gross
negligence. Our
courts have however also held that whilst a court
may well decline to grant relief where the default has been wilful or
due to
gross negligence it cannot be accepted that the absence of
gross negligence in relation to the default is an essential criterion
or an absolute pre-requisite, for the granting of relief under Rule
31(2)(b). See Saraiva Construction (Pty) Ltd v Zululand Electrical
and Engineering Wholesalers (Pty) Ltd 1975(1) SA 612(D) at 615. I
agree with the sentiments expressed by Jones J where he states
in De
Witts Auto Body Repairs (Pty) Ltd supra that it is but a factor to be
considered in the overall determination of whether
good cause has
been shown although it will obviously weigh heavily against the
applicant for relief. More importantly, Jones J
emphasized that a
magistrate is bound to exercise his discretion judicially in the
light of the consideration referred to above,
and any other
considerations which might be relevant.
[27] On a consideration of the
magistrates reasons it is clear that the magistrate had failed and
neglected to properly consider
whether or not appellants had raised a
bona fide defence.
[28] In addition, the magistrate failed
to give proper consideration to the fact that the first respondent’s
main business
is the facilitation of the provision of affordably
accommodation for the benefit of economically disadvantaged citizens
of the
Western Cape. In terms of Clause 12.2.1 of the lease
agreement, the landlord shall have the right and be entitled to
require the
tenant to transfer from the leased premises to another
premise of the landlord’s housing estates if and when the
landlord
considers the circumstances render such transfer necessary
or desirable. It is clear that the appellants fall into the category
of financially disadvantaged persons and that they were granted
accommodation on this basis. It is further clear that appellants
were not in wilful default and that they were making every effort
possible to pay their rent to the extent that they were making
loans
from all and sundry. Considering its mandate and the fact that it
worked with the Western Cape Department of Housing to
provide
economical housing/accommodation to the financial disadvantaged in
the Western Cape, there is no evidence that the landlord
made any
attempt whatsoever to transfer the appellants to another of its
premises, albeit on the basis that they would be required
to pay a
lesser rental, and considering that, in my view, the circumstances
rendered such a transfer necessary or desirable.
[29] Even though the magistrate
correctly placed emphasis on the negligence of the defendants’
attorneys, which appears to
be the paramount reason which resulted in
the Eviction Order being granted against the appellants, it appears
that he did so out
of context. As correctly held by Jones J in De
Witts Auto Body Repairs (Pty) Ltd supra at p711, ‘the correct
approach is
not to look at the adequacy or otherwise of the reasons
for the failure to file a plea in isolation. Instead, the
explanation,
be it good, bad, or indifferent, must be considered in
the light of the nature of the defence, which is an all-important
consideration,
and in the light of all the facts and circumstances of
the case as a whole … An application for rescission is never
simply
an enquiry whether or not to penalise a party for his failure
to follow the rules and procedure laid down for civil procedure in
our courts. The questions is, rather, whether or not the explanation
for the default and any accompanying conduct by the defaulter,
be it
wilful or negligent or otherwise, gives rise to the probable
inference that there is no bona fide defence, and hence that
the
application for rescission is not bona fide. The magistrate’s
discretion to rescind the judgments of his court is therefore
primarily designed to enable him to do justice between the parties.
He should exercise that discretion by balancing the interest
of the
parties, bearing in mind the considerations referred to in Grant v
Plumbers (Pty) Ltd (supra) and HDS Construction (Pty)
Ltd v Wait
(supra) and also any prejudice which might be occasioned by the
outcome of the application. He should also do his best
to advance
the good administration of justice. In the present context this
involves weighing the need, on the one hand, to uphold
the judgments
of the courts which are properly taken in accordance with accepted
procedures and, on the other hand, the need to
prevent the possible
injustice of a judgment being executed where it should never have
been taken in the first place, particularly
where it is taken in a
party’s absence without evidence and without his defence,
having been raised and heard’. It
is clear that the magistrate
did not give any consideration to the aforesaid principles.
[30] In the present matter, it is clear
that the appellants had done everything reasonably necessary to
instruct their attorney
of record. There is no evidence that the
appellants were responsible for the delays and problems that
occurred.
[31] It is accepted law that where the
delay was due entirely to the negligence of the applicant’s
attorney, the attorney’s
neglect should not in the
circumstances of the case debar the applicant who was himself in no
way to blame, from relief. See Regal
v African Superslate (Pty) Ltd
1962(3) SA 18(A) at 23.
[32] I agree of course that there is a
limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence
or the insufficiency of the
explanation tendered. I am however satisfied that it cannot be said,
that the appellants’ ,
when they found out, that the prescribed
period to apply for rescission of the judgment had lapsed, and that a
condonation application
is necessary, had sat back passively and done
nothing to rectify the situation.
[33] A consideration of the magistrates
reasons for refusing the condonation application and dismissing the
application for rescission
setting aside the order, points to the
inescapable conclusion that he was impatient and extremely irritated
with the conduct of
the appellants attorney and that in his view the
appellant could not hide behind the negligence of his attorney. Of
further concern
is that he appeared upset that his roll had become
clogged up with rescission applications in respect of Communicare
matters where
applicants were out of time, opposing affidavits were
not filed timeously, thus resulting in condonation applications, and
further
resulting in a situation where according to him a court is
sort of held hostage so to say to grant the condonations ‘so
that
we can just at least get to the hearing and finalise the
matter’. It is apparent from his remarks that in his view,
applications
of this nature ‘drag on for ever and ever’
and that should the court grant the application (in casu) then, to
use his
words ‘… when on earth are we going to get to
the actual hearing of the matter and when is there ever going (sic)
to come finality?’.
[34] The approach adopted by the
magistrate is clearly not in accordance with the general principles
as laid down in the authorities
hereinbefore referred to and in my
view amount to a misdirection.
[35] It is further clear that the
magistrate had erred and misdirected himself on the facts by
considering the question of the explanation
by the appellants in a
vacuum and in doing so, he failed to make a proper assessment of the
explanation given by appellants considering
the nature of the defence
on the merits together with the appellants bona fides and the desire
to raise the defence at the hearing
of the eviction application. The
magistrate accordingly erred by not looking at the total picture
presented by all the facts and
by considering the explanation and the
defence in a piecemeal manner. On a conspectus of the evidence it is
clear that the appellants
have given a reasonable explanation for the
default, that the application was made in good faith and that a bona
fide defence exists
to the plaintiffs claim in respect of the arrear
rental. The action relating to the arrear rental is however not the
subject matter
of this appeal and it appears as if the appellants
have to date not brought any applications for the rescission of that
judgment.
In my view the magistrate’s judgment had regrettably
become clouded by his pre-occupation with the conduct of attorney
Khan
which resulted in him not giving proper consideration to the
total picture as hereinbefore referred to.
The just and equitable issue
[36] On the papers it is clear that the
appellants are indigent and thus rely on economical housing and
accommodation of the kind
provided for by respondent. They occupy
the property with their three minor children and they have no
alternative accommodation.
[37] Mr Khan contended on behalf of the
appellants that they are entitled to legal protection under the PIE
Act read with the provisions
of Section 26 of the Constitution of the
Republic of South Africa 1996. Ms Steyn who appeared for the first
respondent contended
strongly that the appellants do not qualify for
protection under the PIE Act, that the court a quo had decided the
matter correctly
in not granting condonation for the late bringing of
the rescission application and that it in any event since the
appellants were
in arrears with their rent, whatever the amount, that
they had not made an effort to find alternative accommodation and
that there
was no obligation or duty on the court a quo or the
respondent to come to their assistance.
[38] Section 4(6) of the PIE Act
provides that:
“4(6) If an unlawful occupier has
occupied the land in question for less than six (6) months at a time
when the proceedings
are initiated, the court my 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”.
[39] Section 4(7) provides that where
an unlawful occupier has occupied land in question for more than six
months at the time when
the proceedings are initiated, the court is
enjoined, in addition to the above-mentioned circumstances, also to
consider whether
land has been made available or can reasonably be
made available by a municipality (or other organ of State or another
landowner)
for the relocation of the unlawful occupier.
[40] It is now generally accepted law
that the PIE Act was enacted for the sole purpose of giving effect to
the rights afforded
under Section 26 of the Constitution of the
Republic of South Africa, 1996 (‘the Constitution’).
Section 26 of the
Constitution which entrenches the right to housing
provides that:
1. Everyone has the right to have
access to adequate housing;
2. The State must take reasonable
legislative and other measures within its available resources, to
achieve the progressive realization
of this right.
3. No one may be evicted from their
house or have their home demolished without an order of Court made
after considering all the
relevant circumstances.
[41] There can now be no doubt that the
PIE Act demonstrates how serious the legislature is in its protection
of the rights contemplated
in Section 26 of the Constitution. See
Ark City of Refuge v Bailing and Others
[2011] 2 All SA 195
(WEC).
The appellants and their children have occupied the premises since
2006. The contention that they are not entitled to
the protection of
the PIE Act and the provisions of Section 26 of the Constitution, is
ill conceived and misguided and falls to
be dismissed. On the facts
of this particular case, I am satisfied that according to their
personal circumstances the appellants
fall within the purview of the
PIE Act and are therefore entitled to the protection afforded by the
Act. It is clear from the
approach by the SCA and Constitutional
Court that a court seized with an eviction application is obliged to
consider the availability
of alternative land for the relocation of
the occupier. Accordingly where information relating to these
matters is not placed
before the court, the court will not be in a
position to consider these circumstances in determining whether the
eviction was just
and equitable. See Occupiers of Erf 101, 102, 104
and 112 Shorts Retreat Pietermaritzburg v Daisy Dear Investments
(Pty) Ltd and
Others
[2009] All SA 410
(SCA);
[2009] ZASCA 80
paras
5 – 6, The Occupiers, Shulana Court, ll Hendon Road, Yeoville,
Johannesburg v Steele 2010 JDR 0300 (SCA) JDR 0300
p1 at p10. In
Port Elizabeth Municipality v Various Occupiers 2005(1) SA 217 (CC)
at para 32 Sacks J sets out the obligation of
the court as follows:
‘The obligation on the court is ‘to have a regard’
to the circumstances, that is, to give
them due weight in making its
judgment as to what is just and equitable. The court cannot fulfil
its responsibilities in this
respect if it does not have the
requisite information at its disposal. It needs to be fully apprised
of the circumstances before
it can have regard to them. It follows
that although it is incumbent on the interested parties to make all
relevant information
available, technical questions relating to the
onus of proof should not play an unduly significant role in its
inquiry…..
Both the language of the section and the purpose
of the statute require the court to ensure that it is fully informed
before undertaking
the onerous and delicate task entrusted to it. In
securing the necessary information, the court would therefore be
entitled to
go beyond the facts established in papers before it.
Indeed, when the evidence submitted by the parties leaves important
questions
of fact obscure, contested or uncertain, the court might be
obliged to procure ways of establishing the true state of affairs, so
as to enable it properly to ‘have regard’ to relevant
circumstances’. In the Occupiers, Shulana Court, ll Hendon
Road, Yeoville, Johannesburg v Steele (supra) Theron AJA held at para
12, that ‘PIE imposed a new role on the courts in
that they
are required to hold the balance between illegal eviction and
unlawful occupation and ensure that justice and equity
prevail in
relation to all concerned’. Sacks J, in Port Elizabeth
Municipality (supra), described this new role as ‘complex
and
constitutionally ordained’ and one which required a court ‘to
go beyond its normal functions, and to engage in
active judicial
management’. A number of courts, have in relation to the
provisions of Section 4 of PIE, recognized the
duty of the court to
act proactively, as well as its powers to investigate, call for
further evidence or make special protective
orders. In Shorts
Retreat, (supra) Jafta JA stated that Section 4 obliged the court to
be ‘innovative’ and in some
instances, ‘to depart
from the conventional approach’.
[42] Even though the magistrate refers
to the constitutional court case of Government of the Republic of
South Africa and Others
v Grootboom and Others 2001(1) SA 46 CC he
clearly did not have proper regard to the principles laid down in
that matter and in
particular the finding of the court ‘that a
housing programme could only be reasonable if it provided emergency
shelter to
people in desperate need who, for whatever reason, faced
the prospect of homelessness’. See paras 52, 63 and 49.
[43] In dealing with matters of this
nature, there can be no doubt that a special sense of
constitutionalism is required on the
part of the presiding officer in
the sense that his / her primary function is to give effect to the
constitutional rights of the
affected individuals as embodied in the
Constitution and the principles as hereinbefore set out. To
illustrate the magistrates
inability to appreciate his role, I refer
to the following remarks made by him with reference to the
application by the appellants
where he says that the ‘only
thing that he is trying to place before this court is to play the
emotion card to say: I will
be out in the street if the court do not
grant me the opportunity to come to the court to give you all this
information, yet again
and another might come and say it is not just
and equitable to evict you in these circumstances…’ All
the documents
or the photos attached here (sic) to how absolutely
shocking state the property is in. I think it was raised in the
opposing affidavit.
If not, I might have thought about it. If it
was in such a sorry state, I cannot see how the applicant can stay in
the property
and why he even want to stay in the property, because
what he tried to portray here in, court is that it is not liveable.”
[44] The approach adopted by the
magistrate is clearly incorrect and amounts to a misdirection. The
magistrate’s remarks
were, in the context of this matter,
completely insensitive and are a further illustration that the
magistrate had lost sight of
the fact that the appellants and their
family had nowhere else to go and that they were accordingly forced
to live in the property
irrespective of the condition in which it
was. He further failed to have regard to the words of Van der
Westhuizen J in City of
Johannesburg M M v Blue Moonlight Properties
2012(2) SA 104 CC, where the learned judge stated at p118 with
reference to the Port
Elizabeth Municipality case (supra), that
courts have recognized the concept of ‘ubuntu’ as
underlying the Constitution
and PIE and that it is relevant to their
interpretation. Accordingly the magistrate in dealing with the
matter was required to
apply the concept of ‘ubuntu’
which ‘infuse elements of grace and compassion into the formal
structures of the
law’. As was stated in the Port Elizabeth
Municipality case, a court is called upon to balance competing
interest in a principled
way and to promote the constitutional vision
of a caring society based on good neighbourliness and shared concern.
The spirit
of ‘ubuntu’ which is part of the deep culture
heritage of the majority of the population suffuses the whole
constitutional
order and combines individual rights with a
communitarian philosophy and espouses the need of human
interdependence, respect and
concern.
[45] Even though criticism has been
levelled about the detail provided by the appellants as to why it
would not be just and equitable
to evict them, I am on the whole
satisfied that based on the information that was placed before the
court about their personal
circumstances that they entitled to the
protection afforded to them in terms of the law and the Constitution.
[46] In any event the unreasonable
approach adopted by the magistrate in refusing to hear the evidence
of the municipal manager
regarding alternative accommodation, and or
to call for any other relevant evidence, as he was required to do in
terms of the law
to assist him in the ‘just and equitable’
enquiry, in my view amounts to a further misdirection.
[47] I am accordingly satisfied that
the magistrate erred and misdirected himself when he refused to grant
the appellants condonation
and when he dismissed the application for
rescission of the order made on 7 February 2013 with costs.
[48] Since the effect of the
magistrate’s refusal to grant the appellant’s condonation
resulted in the eviction application
not being considered, it is
necessary that the matter be remitted back to the magistrate to
consider the application for rescission
afresh. Considering that the
magistrate who dealt with the matter on 21 November 2013 will not be
able to hear such an application
objectively, the de novo hearing of
the application for the rescission on the merits of the eviction
application should be heard
by a different magistrate.
Costs
[49] In the normal course costs are not
granted in appeals of this nature. However, since it is clear that
the appellants are indigent
and that they literally had to go from
pillar to post to get funds to instruct their attorney to bring the
application in the court
a quo and thereafter had to find money to
fund the prosecution of this appeal, I am of the view that this is an
appropriate matter
where I should deviate from the normal approach
followed in matters of this nature, and make a cost order in favour
of the successful
party.
[50] In the result I make the following
order:
1. The appeal is upheld with costs.
2. The order by the magistrate to
refuse to grant the applicants condonation and dismissing the
rescission application in respect
of the order made on 7 February
2013, is set aside.
3. The order of the magistrate is
replaced with the following:
a) The applicants are granted
condonation for the late bringing of the application for the
rescission of the order made by the magistrate
at Goodwood on 7
February 2013.
b) The matter is remitted back to the
magistrate at Goodwood for hearing afresh on the merits of the
rescission application before
a magistrate other than the magistrate
who refused to grant the applicants condonation on such date to be
determined by the Clerk
of the Court.
c) The parties are hereby granted leave
to supplement their papers.
RILEY, AJ
SAMELA, J: I agree and it is so
ordered.
SAMELA, J