George Municipality v Vena and Another

• Jurisdiction: South Africa
• Judge: Corbett JA, Van Heerden JA, Hefer JA, Milne JA, Kumleben JA
• Judgment Date: 30 November 1988
• Citation: 1989 (2) SA 263 (A)
• Hearing Date: 17 November 1988
• Court: Appellate Division

Milne JA:

This is an appeal against the grant of a spoliation order and certain other relief which the respondents obtained in the Cape of J Good Hope Provincial Division. The judgment of the Court a quo is reported as

Milne JA

Vena and Another v George Municipality 1987 (4) SA 29 (C). The allegations of fact, the contentions of law and the relevant legislation are clearly and fully set out in the judgment of Friedman J. It is therefore unnecessary to set them all out again at this stage, although I shall have occasion to refer in detail to the legislation. A

B There can be no doubt that the appellant municipality did demolish the partly erected building occupied by the first respondent, and the extra room which the second respondent had added to the house occupied by him, and that it did so without obtaining an order of court. The appellant invoked the provisions of s 3B(1)(a) of the Prevention of Illegal Squatting Act 52 of 1951 (as amended), which I shall call 'the Act', C in seeking to justify this demolition.

Before considering whether those provisions did justify such demolition it is necessary to consider whether the learned Judge a quo was right in concluding that, on the affidavits, each of the respondents had established, on a balance of probabilities,

D '... a title or right to the land on which the building or structure was or is situated, by virtue of which he may lawfully occupy the land'.

This is so because s 3B(4)(a) of the Act prevents any person from asking for any order, judgment or other relief in any civil proceedings of whatever nature, in any court, that is founded on, inter alia, E the demolition under s 3B of any building or structure, unless that person has first satisfied the court that he has a title or right of the kind stated above. (The Court a quo held that these proceedings were founded on a demolition 'under this section' (3B) and this finding was not questioned on appeal.)

The Court a quo found that there was a conflict of fact on the F affidavits and applied the test set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H - I. Initially there was such a dispute with regard to both the respondents but, by the time all the affidavits had been filed, the dispute on the material facts was, in the case of the first respondent, more apparent than real. I shall start by dealing with her position.

G In the first affidavit filed on behalf of the appellant the Town Clerk stated the following:

'Volgens respondent se rekords bewoon eerste applikante plakkerwoning nommer 576. Sy het eers op 1 Julie 1986 by respondent as bewoner van Lawaaikamp geregistreer...',

H and denied the first respondent's allegation that the plot was initially allocated to 'our family', but was registered in the name of her sister Jenette Moyakhe and that she, the first respondent, had paid the rent. He added:

'Sedert 1976, toe ek diens aanvaar het as stadsklerk, het respondent geen toestemming aan nuwe intrekkers gegee om hulle in Lawaaikamp te vestig nie.'

I Annexed to his affidavit were the affidavits of one De Swardt and one Jansen. De Swardt stated that he was responsible for the appellant's accounting documents '... wat betrekking het op huishure van nie-Blanke areas' and said 'ek... kan onomwonde verklaar dat in September 1982 (when the Municipality's records were computerised) nòg Ellen Vena J nòg Edward Vyver 'n huis besit, beheer of gehuur het in die

Milne JA

A gebied wat bekend staan as Lawaaikamp; of trouens in enige ander nie-Blanke gebied van die Munisipaliteit van George nie'. Jansen, in his affidavit, stated that from the results of a survey which he conducted in 1980 in collaboration with the appellant it was clear that neither of the respondents occupied, rented or controlled a house in Lawaaikamp at the time of the survey. As the learned Judge a quo pointed out in B his careful analysis of the affidavits and annexures this was an incorrect statement of the position. The appellant municipality quite properly made its records available to the respondent's attorney and he brought to light a number of the appellant's records which, in my view, substantially corroborate the first respondent's version.

C It was the first respondent's case that she had lived at Lawaaikamp with her children since 1970, and that when her sister died in 1979 she, personally, went to the appellant's offices to inform the appellant's officials of this fact, and was told '... that it did not pose any problem and since then we continued staying there and paid rent'. In the context, she plainly means that she was told this by one of D the appellant's officials. It turns out that there is, indeed, a card among the records of the appellant which relates to the very premises occupied by the first respondent which has on it the name 'Jenette Mayake' (sic ) and the name 'L Vena'. A clerk in the employ of the appellant, one Ruiters, says that he added the name 'L Vena' to this E card 'gedurende 1981', and at a later date the first respondent's 'pasboeknommer'. He says, further, in para s 3 and 4 of his affidavit:

'3.

Ek ontken egter dat Ellen Vena by enige geleentheid aan my sou gesê het dat sy die struktuur en huurverpligtinge van Jenette Mayaki oorgeneem het. Ek vind die bewering geheel en al onaanvaarbaar, omdat die naam van Jenette Mayaki dan op die F rekeningkaart deurgehaal sou gewees het.

4.

Dit was 'n algemene gebruik om waar bekend die name van loseerders ook op rekeningkaarte aan te bring ten einde 'n volledige rekord by te hou met die doel om die instroming van ongemagtigde persone te beheer. Hierdie gebruik moes gestaak word toe die rekeninge gerekenariseer is.'

The learned Judge a quo found this explanation improbable. In my G view it is highly improbable. In the first place, if it is true that no 'nuwe intrekkers' were permitted to establish themselves in Lawaaikamp after 1976, it seems probable that Ruiters must have accepted that the first respondent was not a 'nuwe intrekker' which supports the first respondent's allegation that she had been there with the H appellant's consent since 1970. Secondly, the first respondent was never a boarder, and certainly could not have been one after her sister had died. What is more, it is quite clear that the first respondent was already a 'gesinshoof', in this very house when Jansen carried out his survey during 1980 'in samewerking met die Munisipaliteit van George'. There is a rather half-hearted attempt to suggest that the reference to I 'L Vena' in the annexure to Jansen's affidavit, does not refer to the first respondent, but it is quite plain from the evidence as a whole that it does. It is significant that the first letter of the first respondent's first name was incorrectly reflected as 'L' instead of 'E' both in the accounts card entry made by Ruiters which he says he made in 1981, and in the annexure to Jansen's affidavit, which he says is the J result of a survey conducted in 1980. It

Milne JA

A seems reasonably clear that Ruiters does not purport to have an independent recollection of this entry on the card, nor of the surrounding circumstances, but relies on an attempted reconstruction based on what appears on the card. Furthermore, as pointed out in the judgment (supra at 44E - G), the allocation of the payment of the R100 paid by the first respondent's son in July 1986 to the months B of February, March, April and May 1986, is inconsistent with the appellant's contention that she was first recognised by the appellant as renting the house in July 1986.

In these circumstances the Court a quo correctly found that the first respondent had established the requisite right in terms of s 3B(4)(a) of the Act.

C I deal now with the question of whether the Court a quo correctly found that the second respondent had, on the affidavits, established such a right. The second respondent's case was that he had been allocated a site in Lawaaikamp in 1980 by one Tshefu, that he had paid rent from then until the end of 1986 and that it was in 1985 that he added the extra room which the appellant demolished in 1987. The D Town Clerk of the appellant stated that Tshefu was employed '... om toe te sien dat geen nuwe huise of strukture in Lawaaikamp gebou word nie'. He said that Tshefu had no authority at any time to allocate any sites to anyone. No affidavit by Tshefu was filed.

The position of the second respondent differs from that of the E first respondent because his name does not appear in the survey conducted by Jansen nor is he shown as a tenant in any of the records of the appellant prior to July 1986. Furthermore he was unable to produce receipts for rental paid before July 1986, nor did he proffer any...