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

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Lewis JA, Tshiqi JA, Wallis JA and Petse JA
• Judgment Date: 14 September 2012
• Citation: 2012 (6) SA 294 (SCA)
• Docket Number: 735/2011 [2012] ZASCA 116
• Hearing Date: 21 August 2012
• Court: Supreme Court of Appeal
• 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.

Wallis JA (Mthiyane DP, Lewis JA, Tshiqi JA and Petse JA concurring): A

Introduction

[1] This case illustrates the difficulties that confront a court of first B instance faced with an application for an eviction order and seeking to give effect to constitutional prescripts. As will emerge, the judge in the high court sought to address the issue by granting an order, at the instance of the applicant, that adapted an order made by this court in a similar case. By the conclusion of argument all counsel who appeared before us agreed that in doing so he erred. That is a view we share and C results in the appeal being upheld to some extent and a remittal of the case to the high court on terms set out in the order. But first it is necessary to set out the facts giving rise to the appeal.

[2] The first respondent, Changing Tides 74 (Pty) Ltd (Changing Tides), D owns Tikwelo House. The building was formerly a factory or warehouse. Some years ago, when under different ownership and in circumstances that Changing Tides is unable to explain, people started to live there. The interior was divided into flats using rudimentary partitioning. Whether the original owners were party to this or whether its occupation occurred through people desperate for a roof over their E heads simply taking possession of the building is not known. Whilst the building was in the hands of its previous owners, third parties took control of access to it and let rooms and collected rentals from the occupiers. They now maintain that control as against Changing Tides by force or the threat of force. This phenomenon is appropriately described F as the hijacking of the building. Tikwelo House is unsuited to human habitation and in a state of disrepair, with no toilet or ablution facilities, no water supply or sewage disposal, illegal electricity connections, inadequate ventilation, and refuse, including human waste, strewn in open spaces. Counsel who appeared for the occupiers said that they accept that it is a deathtrap and that it is in no one's interests that they G continue to live there. It is a health and fire hazard and the local police claim that it is a focus for illegal activities. The appellant, the City of Johannesburg (the City), has given Changing Tides notice to comply with the public-health and emergency-service bylaws, as well as the provisions of the National Building Regulations and Building Standards Act 103 of 1977, H and has commenced proceedings against Changing Tides to compel compliance with its demands.

[3] Changing Tides has no responsibility for this situation. In late 2007 it acquired this property and three others in settlement of debts owed to associated entities by the previous owner and their shareholders. I Its intention was to redevelop the four properties. Whilst it has tried to obtain control over the property the hijackers have prevented it from doing so. Its only presence on the property takes the form of a single security guard whose principal function is to observe what is happening there. A previous attempt in 2008 to obtain an eviction order was unsuccessful. On 6 April 2011 it commenced the present proceedings to J obtain possession of the building. It cited as respondents all the

Wallis JA (Mthiyane DP, Lewis JA, Tshiqi JA and Petse JA concurring)

occupiers of the building and furnished the names (often in truncated A form) of 97 individuals in a list attached to the notice of motion, stating that, apart from those names, particulars of the respondents were not known to it. It also cited the City, contending that the latter had a direct and substantial interest and that in eviction proceedings of this nature the joinder of the City was inevitable. B

[4] The application was not opposed. It came before Wepener J in the South Gauteng High Court on 14 June 2011. Both Changing Tides and the City were represented, the former by counsel and the latter by its attorney. Counsel for Changing Tides sought an amended order, the principal purpose of which was to take account of the judgment of this court in Blue Moonlight. [1] The City opposed this on the grounds that the C Blue Moonlight judgment was under appeal to the Constitutional Court, [2] but the judge held himself bound by the judgment of this court. He accordingly granted, in addition to an eviction order, a further order that the sheriff prepare a 'matrix' (more accurately a schedule) of information concerning 'each occupier and their household members' as specified in D the order, and an order that the City provide the occupiers whose names appeared in that schedule with temporary emergency accommodation. The City was ordered to pay the costs of the sheriff in preparing the schedule of information.

[5] On 12 October 2011, shortly before the Constitutional Court E delivered its judgment in Blue Moonlight, [3] the judge granted leave to appeal against the order for the provision of temporary emergency accommodation and the costs order against the City. Although the occupiers of the building had thus far played no part in the proceedings, counsel appeared on their behalf to oppose the grant of leave to appeal. F They did not, however, seek leave to appeal against the eviction order nor did they signify an intention to seek the rescission of the eviction order. The matter before us is therefore an appeal against only those parts of the high court's order already mentioned. Prior to the appeal we received an application by the Socio-Economic Rights Institute of South Africa to intervene as amicus curiae, and that was granted on the basis that they G would make written submissions and address brief oral argument.

The order

[6] The limited ambit of this appeal occasioned considerable difficulties. It is therefore necessary to consider the full terms of the court's order. It reads: H

'1.

The First to Ninety Seventh Respondents and all persons occupying through them (collectively ''the occupiers'') are evicted from

Wallis JA (Mthiyane DP, Lewis JA, Tshiqi JA and Petse JA concurring)

A the immovable property situated at numbers 48 and 50 Davies Street, Doornfontein, Johannesburg and described as Erfs 150 and 151 Doornfontein Township, Registration Division I.R., Gauteng more commonly known as Tikwelo House.

2.

The Sheriff alternatively his duly appointed Deputy together with B such assistance as he deems appropriate including the South African Police Services is ordered and authorised to enter into Tikwelo House at no 48 and 50 Davies Street Doornfontein Johannesburg in order to compile a ''matrix'' of information in respect of each occupier and their household members including children (the occupiers) consisting of the information listed below C and to furnish a copy of such matrix to the Applicant and the 98th respondent as well as file a copy thereof in the Court file, within 15 days of this order:

2.1

Full names;

2.2

Nationality and language preference;

2.3

Date on which they allege to have taken occupation in the D building;

2.4

Occupation;

2.5

Identity number supported by copy of identity document or document which positively identify the occupier;

2.6

Income supported by payslip if possible;

2.7

Number and name of dependent occupiers;

2.8

E Age;

2.9

Whether the occupier has applied for State-assisted relief in terms of the RDP Programme or any other State sponsored programme, and proof of such application.

3.

The 98th Respondent is ordered to provide those occupiers whose names appear in the matrix to be compiled by the Sheriff of the F Court aforementioned with temporary emergency accommodation as decant in a location as near as feasibly possible to the area where the property is situated, provided that they are still resident at the property and have not voluntarily vacated it as of 14th August 2011, by which date the occupiers are to vacate, failing which the Sheriff of the court is ordered to evict them.

4.

G The 98th Respondent is to pay the costs of the Sheriff in respect of compiling, delivering and filing the matrix aforementioned.'

[7] The first difficulty is that as a result of a drafting error the eviction order in para 1 appears to relate only to the persons named in the list annexed to the notice of motion and not to all the occupiers of the H building, although the application had been directed at all the occupiers. Counsel for Changing Tides informed us that the notices in terms of ss 4(2) and (5) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) were directed at and served, in accordance with an order in terms of s 4(4) of PIE, on all the I occupiers. Paragraphs 2 and 3 of the order are clearly directed at an eviction of all the occupiers, notwithstanding the apparently restricted ambit of para 1. No one appears to have noticed this and the heads of argument in the appeal were delivered on the basis that the order granted related to all occupiers and not simply those referred to as the first to ninety-seventh respondents. There was accordingly an internal contradiction J in the order itself.

Wallis JA (Mthiyane DP, Lewis JA, Tshiqi JA and Petse JA concurring)

[8] The next difficulty is that in terms of para 2 of the order the sheriff A was directed, with the assistance of the South African Police if required, to enter Tikwelo House and compile the schedule of information regarding the occupiers and their personal circumstances. This is not the proper function of the sheriff. Those functions are prescribed by statute. [4] In the high court it is to execute all sentences, decrees, judgments, writs, B summonses, rules, orders, warrants, commands and processes of the court and make return of the manner of execution thereof to the...