Emfuleni Local Municipality v Builders Advancement Services CC and Others

• Jurisdiction: South Africa
• Judge: Willis J
• Judgment Date: 28 April 2010
• Docket Number: 51258/2009
• Hearing Date: 01 April 2010
• Counsel: AW Pullinger for the applicant. BY Ngqwangele for the first, second and third respondents. No appearance for the fourth and fifth respondents.
• Court: South Gauteng High Court, Johannesburg

Willis J:

[1] On Thursday 1 April 2010, the day before the Easter weekend commenced, I made an order in this matter, indicating that I would give E my reasons later. Not only the original court file, but also the duplicate file, has gone missing. A handwritten draft reflecting the outcome of deliberations among counsel for the parties and the court was made an order of the court. As result of the files having gone missing, the draft order has been lost. There has been a considerable delay occasioned by F vain attempts by the attorneys for the applicant and my registrar to locate the missing files and a copy of the order. What follows is a reconstruction of that order, taken from my notes, those of counsel and attorneys for the applicant and my own recollection:

It is ordered as follows: G

(i)

The application is postponed sine die.

(ii)

The applicant is to furnish the respondents' attorneys with copies of items 1 to 6 in the prepared index before the close of business on 6 April 2010.

(iii)

The respondents are given a further and last opportunity to file a H proper set of answering affidavits by no later than Tuesday 13 April 2010.

(iv)

The applicant is to file its replying affidavit by no later than Thursday 29 April 2010.

(v)

In view of the controversy and sensitivity surrounding this matter, I the Deputy Judge President is respectfully requested to appoint a full court consisting of three judges to hear the matter.

(vi)

In view of the urgency of the matter, the Deputy Judge President is respectfully requested to arrange for a hearing of the matter as soon as reasonably possible.

(vii)

The costs of this application incurred thus far are reserved. J

Willis J

A No real prejudice has been occasioned to the parties by reason of the lost order: counsel for the parties, other than the fourth and fifth respondents, were in court and were fully aware of its contents. It is hard to imagine that there can be any justifiable excuses by any of the parties for their failure to comply with the order in the interim.

B [2] The file had originally been allocated to another judge. He became unavailable and I was asked to take over the matter as a favour. I did so, unaware that I was being given a 'hot potato'. As I have recorded above, I informed the parties that I would give my reasons for the order later, in a formal written judgment. These are my reasons.

C [3] This application was originally brought as an urgent one on 8 December 2009. It was heard by my brother Kgomo J. The applicant is a municipality. It seeks the eviction of a large number of persons whom it alleges are in unlawful occupation of State-owned property. Kgomo J made an order which restrained the first and second respondents from D selling erven in Ironsyde/Debonair Park and authorised the serving of notices of intended eviction on the remaining respondents. After various postponements, my brother Mbha J made an order on 9 March 2010 that the respondents were to file their answering affidavits by 16 March 2010. Despite this order by Mbha J, various of the respondents have not E done so, at least insofar as filing an answering affidavit in the sense that such a document is generally understood to be. The affidavit filed fails to deal with the material allegations of the applicant and raises all manner of irrelevant issues. The applicant has asked that I make an order striking out certain passages therefrom. The respondents have also raised a whole number of points that seem to me to be technical in nature. They say that F they have not been made properly aware of the nature of the application. I decided that the court should cut through the procedural issues and ensure that everyone received a full and fair hearing in the matter. Initially, Mr Pullinger, who appears for the applicant, submitted that, in view of the respondents' failure to deal with the material issues, I should G grant an eviction order.

[4] After Mr Pullinger and I had exchanged a few 'war stories' about our experiences with applications for eviction, he agreed with the broad thrust of the order which has been made. Mr Ngqwangele, counsel for the first, second and third respondents, also agreed with it. He submitted H that 'we need clarity in these matters'. Indeed we do. I also informed counsel that I was definitely the wrong person to decide the substantive points. My reasons for doing so will appear fully later. Furthermore, the making of eviction orders is so fraught with difficulty that I considered it appropriate that the matter should be heard by a so-called 'full bench'. Perhaps I should explain.

I [5] My experience of the case of Machele and Others v Mailula and Others [1] and Philani-Ma-Afrika and Others v Mailula and Others [2] may

Willis J

perhaps bear some repeating. Applying the well-known principles in A Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [3] to determine factual foundation in motion proceedings, I had to consider a situation in which there had been a transfer of a dilapidated block of flats in central Johannesburg to a bona fide purchaser. The purchaser had bought the property in question with a view to renovating and restoring it. His B intention was obviously to make a profit. He paid some R3,5 million for the property. He was lent some of this money by the Trust for Urban Housing Finance, which was the mortgagee, with a bond for R7,9 million registered over the property. The size of the bond was indicative of the scale of renovations anticipated. In order to renovate and restore the property, it was necessary to evict the tenants. To this end, he brought an C application in this court.

[6] Over a period of months, various judges of the High Court, including myself, made orders to ensure that the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) were complied with. My brother Gildenhuys J ordered the City of D Johannesburg to file a report. It did so in terms that indicated that the eviction would be justifiable. I ordered the Registrar of Deeds to file a report. He did so. He indicated that the documentation submitted by the conveyancer was 'incomplete and apparently incorrect'. He placed reliance on s 15(A)(1) and (3) of the Deeds Registries Act 47 of 1937, as E amended. Essentially, he submitted that he had to rely on the conveyancer to perform the task at hand properly, and was entitled so to do. The document which gave rise to the transfer specifically recorded that the conveyancer was to act on behalf of the seller, recorded therein as being Philani-Ma-Afrika.

[7] In the meantime, and in response to the eviction application, F Philani-Ma-Afrika, a company registered in terms of s 21 of the Companies Act 61 of 1973, as amended, brought an application in the South Gauteng High Court, the most salient feature of which application was to set aside the transfer. Prior to the transfer to Mr Mailula as the purchaser, Philani-Ma-Afrika had been the registered owner. G

[8] It was common cause that the internal affairs of Philani-Ma-Afrika had been in a parlous state or had 'fallen into disarray' for a long time before either the sale or transfer of the property. It was common cause that the provisions of s 228 of the Companies Act (relating to the sale of the greater part of the assets of a company) had not been complied with, H that there may have been various other irregularities and that there were pointers to the probability of an internal fraud having been perpetrated on the members of Philani-Ma-Afrika by persons who had not been properly appointed to act on its behalf. Rentals were not being paid to Mr Mailula or anyone acting on his behalf. To use a colloquial expression, the building had been 'hijacked'. I

[9] Gildenhuys J ordered that the eviction application and the application to set aside the transfer to Mr Mailula be heard together. By the time

Willis J

A the applications were heard by me, the parties were ad idem that the applications were so closely interlinked that the result of the application to set aside the transfer would determine the eviction: if the transfer stood, the eviction order would have to be granted, but on terms allowing for a reasonable period to vacate, and that, if the transfer were set aside, there would be no eviction order. After months and months, we B had reached the end of the road.

[10] Although I delivered my judgment extempore because the matter appeared to have become urgent, needing a determination before the long court recess at the end of the year, I took the trouble to review, as C far as it was reasonably possible to do so, the law...