City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 2012 (6) SA 294 (SCA)

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others
2012 (6) SA 294 (SCA)

2012 (6) SA p294

Citation	2012 (6) SA 294 (SCA)
Case No	735/2011; [2012] ZASCA 116
Court	Supreme Court of Appeal
Judge	Mthiyane DP, Lewis JA, Tshiqi JA, Wallis JA and Petse JA
Heard	August 21, 2012
Judgment	September 14, 2012
Counsel	J Both SC (with AW Pullinger) for the appellant.; R Willis (with NA Mohomane) for the first respondent.; T Ngcukaitobi (with Z Gumede) for the second to ninety-eighth respondents.; S Wilson (with I de Vos) for the amicus curiae.

Flynote : Sleutelwoorde B

Land — Unlawful occupation — Eviction — Statutory eviction — Relationship between inquiry into whether to evict and enquiry as to eviction date — Court C first to inquire whether it is just and equitable to evict, and if it is, into just and equitable date of eviction and conditions to attach to order — When first and second inquiries complete, court to make single order — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land — Unlawful occupation — Eviction — Statutory eviction — Role of court — D Court to take more active role than usual to ensure it has enough information to make decision — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, ss 4(7) and 4(8).

Land — Unlawful occupation — Eviction — Statutory eviction — Onus — Applicant for eviction order bears onus to satisfy court that it is just and equitable to E so order — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 4(7).

Land — Unlawful occupation — Eviction — Statutory eviction — Joinder of local authority — Applicant to join local authority where eviction order might trigger authority's constitutional obligations to provide housing or emergency accommodation — Prevention of Illegal Eviction from and Unlawful F Occupation of Land Act 19 of 1998.

Land — Unlawful occupation — Eviction — Statutory eviction — Local authority's procedural obligations — Where applicant has joined authority and it may be obligated to provide emergency accommodation, local authority to file report with court on its housing policy and facts of case — Prevention of G Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

Headnote : Kopnota

This case concerned a private party's attempt to evict occupiers from a building it owned and raised the relationship between ss 4(7) and 4(8) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE); how a court hearing such a matter was to acquire the H information it required in order to decide whether to order eviction; the onus in matters of this type; when a local authority was to be joined; and the local authority's reporting obligations.

The facts

The facts were that poor persons occupied a building that later came to be I controlled by third parties who let its rooms and collected rent from the occupants. At a later stage the owner, in order to settle a debt, transferred its ownership to Changing Tides 74 (Pty) Ltd (Changing Tides).

The building was unsuitable for habitation and in a state of disrepair, and the City of Johannesburg (the City) issued Changing Tides with a notice to ensure its compliance with the public-health bylaws and legislation on J building standards. The City's notice prompted Changing Tides to begin

2012 (6) SA p295

proceedings to evict the occupiers. Changing Tides cited as respondents the A occupiers and supplied 97 names, and also the City.

The occupiers did not oppose Changing Tides' application and were not represented at the high-court hearing, where the court ordered their eviction. The court also ordered the sheriff to compile a schedule of information on the occupiers, and the City to provide temporary emergency B accommodation to those on it. The City was also to pay the sheriff's costs in preparing the schedule.

The City sought the court's leave to appeal the order that it accommodate the occupiers, and that it pay the sheriff's costs, and this the court granted.

The high court's order C

On appeal the Supreme Court of Appeal (SCA) examined the court's order. In its first paragraph it provided for eviction; in its second, for the sheriff to enter the building to compile the schedule of information; in its third paragraph, that the City accommodate occupiers whose names were on the schedule; and in its fourth paragraph, that the City pay the sheriff's costs in compiling the schedule. D

The SCA noted difficulties with it: paragraph one's eviction order related to the occupiers named in the notice of motion as the first to ninety-seventh respondents, while the application had been directed at all occupiers; paragraph two's direction to the sheriff to enter the building and to gather the occupiers' details was not the function of the sheriff, and the sheriff would likely have difficulty collecting the information. The high court had E erred in granting the latter order and it was null.

The high court's orders in paragraphs three and four also presented difficulties: paragraph two had to be fulfilled for three and four to operate; and the court, on insufficient information, had decided it was satisfied that it was just and equitable to evict, that the timing of the eviction was just and F equitable, and as to conditions. The SCA had therefore to set those orders aside and to determine orders to take their place. It proceeded to examine the law on evictions in order to do so.

The relationship between ss 4(7) and 4(8) of PIE

The SCA noted that courts had not considered the relationship of s 4(7) and G s 4(8) where a private landowner applied for eviction. (Paragraph [12] at 304F.)

It held that in such a case a court had to make two inquiries. It had first to consider all relevant factors and to decide if it were just and equitable to order eviction. If it decided it was just and equitable to evict, it had to make a second inquiry into what justice and equity required in respect of the date H of eviction and conditions attaching to the order. Once the first and second inquiries were concluded, a single order was to be made. (Paragraph [25] at 311F – 312D.)

Procedural issues in eviction applications under PIE

The SCA asked firstly how a court was to acquire information in such cases in I order to make its decision. It commented that a court had to take a more active role than usual to ensure it was adequately informed, provided it did not go beyond the bounds of proper judicial conduct. A court was to proceed within the existing law of evidence and civil procedure and ought to order mediation or engagement or use structured interdicts, if appropriate. (Paragraph [27] at 312G/H – 313B.) J

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A Onus

The SCA held further that an applicant for an eviction order under s 4(7) of PIE bore the onus to satisfy the court that it was just and equitable to so order. The applicant thus had a duty to place enough evidence before the court to discharge the onus, in light of the court's obligation to have regard to all relevant factors before ordering eviction. (Paragraph [34] at 316B – D.)

B Joinder

The SCA held also that where the circumstances were such that a court's order of eviction might trigger a local authority's constitutional obligations to provide housing or emergency accommodation, the authority had to be joined. (Paragraph [38] at 317D – E.)

C The local authority's procedural obligations

The local authority's obligations to the court in matters of this type (where the applicant had joined the authority and it might be obligated to provide emergency accommodation) were to file a report with the court containing the authority's housing policy, and also specifying:

(a)

D the authority's information on the building;

(b)

its information on the occupiers;

(c)

whether an eviction order was likely to result in all or any of the occupiers becoming homeless;

(d)

if so, steps it proposed to alleviate this;

(e)

implications for the owner of delaying eviction;

(f)

E its engagement with the occupiers;

(g)

if it believed there was scope for a mediated process to secure the occupiers' departure. (Paragraphs [39] and [40] at 318C – 319C.)

If in response the applicant indicated it would seek an order imposing duties on the authority, the applicant had to give the proposed order to the authority F in sufficient time for the authority to consider it and to suggest amendments; and if the applicant and authority reached no agreement on it, for the authority to appear before the court to make submissions on it. (Paragraph [41] at 319F.)

The present case

G The SCA observed that the high court had already decided that it was just and equitable to order eviction, and the occupiers had not appealed this. Thus the SCA was concerned only with a just and equitable date for the order to take effect and with the conditions to attach to it. The City had also accepted that it had a duty to assist the occupiers on their eviction. What the City now needed to know was who required temporary emergency accommodation and the nature of their accommodation needs. (Paragraphs [42] H and [47] at 319G – 320C and 321H.)

Procuring information regarding the occupiers

The SCA held that the public-interest law firm that represented all the occupiers should prepare a list of the names and other details of occupiers who required emergency accommodation and should give the list to the City. I (Paragraph [48] at 322C.)

The City's obligations

On receiving the list, the City had to prepare a report of the accommodation it would make available and when it would be available, and the City had then to file it with the court and submit it to the occupiers. J ...