Mtshali and Others v Masawi and Others

• Jurisdiction: South Africa
• Judge: Spilg J, Coppin J and Moshidi J
• Judgment Date: 09 November 2016
• Citation: 2017 (4) SA 632 (GJ)
• Docket Number: A 5008/2012
• Hearing Date: 09 November 2016
• Counsel: JR Brickhill (with JG Bleazard and E Webber) for the appellants. RJ Stevenson for the first and second respondents. L Hollander for the fourth respondent.
• Court: Gauteng Local Division, Johannesburg

Spilg J (Coppin J and Moshidi J concurring):

Introduction

[1] On 19 December 2012 and pursuant to a court order the appellants were evicted from the warehouse they were occupying. The first and C second respondents are the joint registered owners of the property.

[2] The appeal arises from the subsequent refusal by Molahlehi AJ to rescind the eviction order or to vary parts of the order which required the City of Johannesburg Metropolitan Municipality (the fourth respondent) to provide the appellants with temporary housing. The Supreme D Court of Appeal (SCA) granted the appellants leave to appeal to this court. There was however a delay in filing the appeal record. The appellants have provided an acceptable explanation in their application for condonation. The application is unopposed and is granted.

[3] The appellants claimed before the court a quo that they had never E been served with either the eviction application or with the notice required under s 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). They also contended that their occupation was pursuant to oral lease agreements with another person who claimed to be the owner. F

[4] The appellants argued that the failure to serve the requisite statutory notice or the eviction application deprived them of the ability to exercise their rights under PIE. The appellants also tendered, if occupation was restored, to pay the monthly rentals which they allegedly had been paying of not less than R400 per month per room. G

[5] It was contended that the court order which directed that the appellants be provided with temporary emergency accommodation should not have required the adults who had the means to pay a rent of R10 per person per day. It was in this context that the appellants raised for the first time in a replying affidavit to their petition before the SCA that H the City had impermissibly outsourced its constitutional obligation to provide emergency accommodation.

[6] The appellants furthermore argued that the court a quo should have stipulated in its order a time period until when the City was to provide the temporary emergency accommodation and should have provided a I mechanism to regulate the ongoing provision of graduated alternative accommodation. It was contended that as a result of these failures the order granted 'is open ended and leaves the parties uncertain as to their rights and obligations'. They also submitted that the City should have been directed to engage meaningfully with the appellants and to report back to the court. This will be referred to as the 'structural order' issue. J

Spilg J

[7] A The final aspect of the appeal relates to the costs of the rescission application which the appellants had been ordered to pay.

[8] In order to appreciate how the rescission application was transformed into an order against the City to provide temporary emergency accommodation, it is necessary to consider the original eviction application B brought by Mr and Mrs Masawi. They are the first and second respondents in the appeal.

The eviction application

[9] In December 2011 the Masawis brought an application to evict those C who were in occupation of their property. The City was cited as the second respondent in that application.

[10] The owners explained in the papers that they could not provide details of the number of occupants or their names because when Mr Masawi went to the property the people he found living there 'were D very reluctant to give me any information other than to say they were paying rent'. The occupiers claimed that rent was being paid to an 'unknown woman' whom they alleged claimed to be the owner. The occupiers were therefore cited as the 'unknown occupiers of erf 550 City and Suburban, described as 238 Main Street Johannesburg'. This was E also how they were described in the body of the founding affidavit.

[11] The papers alleged that a letter had been addressed to the occupiers on 22 May 2011 advising them to vacate the property, shortly after which a response was received from VM Mashele Attorneys. The attorneys wrote that their client, the Makhaya family, had purchased the F property from a Mr Ozen sometime during 2002 or 2003. The attorneys also claimed that their client was occupying the 'flat' and requested a week to rectify what was said to be an irregularity in the transfer of the property. A schedule was also provided which reflected sporadic payments varying from R4500 to R16 000 that had been made by 'Exclusive G Services' during the period June 1999 through to May 2003.

[12] The owners replied to this letter by asserting their rights as the registered owners and challenged the Makhayas to demonstrate any competing right. Neither the Makhayas nor their attorneys responded.

[13] H In the meanwhile the owners had obtained a confirmatory affidavit from Mr M Katz, a director of Procus CC, from whom they had bought the property. He confirmed that in 1999 an instalment sale agreement had been concluded with Exclusive Services which had taken occupation from the beginning of June 1999. However, transfer was never effected as the sale was cancelled for failure to pay the amounts due.

[14] I At this stage it should be pointed out that despite a number of opportunities presenting themselves during the litigation, and despite the Makhayas' attorneys being invited to do so, nowhere was it ever alleged that the Makhayas had an interest in Exclusive Services. Moreover Molahlehi AJ's finding that the building was hijacked was not put in J issue.

Spilg J

[15] On 13 January 2012 the application was served upon 'Tenten, the A occupier ostensibly a responsible employee, . . . and in control of, and at the place of business of, the unknown occupiers of erf 550, City and Suburban, described as 238 Main Street, Johannesburg'.

[16] In order to comply with the provisions of PIE the owners subsequently brought an application in February 2012 to serve a notice under B s 4(2) of that Act on the 'first respondent' as described in the main eviction proceedings, with service to be effected 'in accordance with Uniform Rule 4'. The order was granted on 22 February and served on 8 March 2012. As with the original application the s 4(2) notice was also served on Tenten.

[17] On 28 March 2012 Kathree-Setiloane J granted an eviction order C against the first respondent, being as stated earlier 'The Unknown Occupiers of Erf 550 City and Suburban, described as 238 Main Street Johannesburg', and also against 'all those who occupied the property in question through and by virtue of the first respondent's occupancy'. Costs were also granted. D

[18] The sheriff's return records that the eviction order was served on 5 May 2012:

'By affixing a copy thereof to the residence of THE UNKNOWN OCCUPIERS OF ERF 550 CITY AND SURBURBAN . . . 238 Main Street, Johannesburg; which is kept locked [and] thus prevents alternative service. Rule E 4(1)(a)(iv).

. . .

Copy of court order affixed to principal door. Illegal unlawful occupiers are violent.' [Emphasis added.]

[19] On 19 December 2013 those who were still in occupation of the F property were evicted by the sheriff with the assistance of the Red Ants. Their plight immediately drew the public's attention since they and their children were left stranded and were living on the street under a bridge near to the property. An attempt was made to regain occupation of the building but the appellants were again removed on 21 December after G which they continued to live under the bridge.

[20] The appellants initially claimed that 127 people had been evicted, of whom 76 were adults. By the time the appellants delivered a supplementary affidavit during February 2013 their number was reduced to 33 in total, of whom 25 were responsible for paying rent. By the time H the appellants brought their petition to the SCA their number was claimed to be 35, of whom 8 were children. There is no explanation provided for either the reduction in the number of those paying rent or the subsequent increase in the total number of evictees.

[21] In January 2013 the appellants brought an urgent spoliation order I against the person whom they believed had effected their forced removal, namely Mr P Makhaya, the third respondent in the present proceedings.

[22] Kgomo J postponed the application for two weeks and directed personal service on the third respondent. The appellants claim that they then realised that Makhaya had not evicted them and withdrew the J

Spilg J

application. A On 23 January 2013 they instituted a fresh application, which is the subject-matter of this appeal, against the first and second respondents.

[23] The application was instituted by Mr Mtshali as the 1st applicant and 'The Occupiers of 238 Corner Main and Berea Street' as the 2nd to B 230th applicants. They are the appellants before this court. The application was brought urgently for hearing on 29 January 2013. The relief sought was to declare the appellants' eviction unlawful and to direct that they be restored to undisturbed possession of their rooms ante omnia pending the finalisation of an application to rescind the eviction order granted on 28 March 2012. The City was joined. However, at that stage C no substantive relief was sought against it.

[24] Although the appellants brought the application as the 1st to 230th applicants, the case made out in the founding affidavit was that the appellants comprised approximately 127 individuals, of whom 51 were D children. Three of the children were under 6 months of age. Nonetheless details of only 40 adults were provided. They were the only ones who deposed to affidavits.

[25] The appellants claimed that prior to their eviction they had no knowledge of any notice or court order. They only...