Mtshali and Others v Masawi and Others

• Jurisdiction: South Africa
• Citation: 2017 (4) SA 632 (GJ)

Mtshali and Others v Masawi and Others
2017 (4) SA 632 (GJ)

2017 (4) SA p632

Citation	2017 (4) SA 632 (GJ)
Case No	A 5008/2012
Court	Gauteng Local Division, Johannesburg
Judge	Spilg J, Coppin J and Moshidi J
Heard	November 9, 2016
Judgment	November 9, 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.

Flynote : Sleutelwoorde B

Local authority — Housing — Temporary emergency accommodation — Whether lawful for municipality to charge for and to engage private party to provide — Mediation to resolve accommodation-allocation disputes — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, s 7.

Land C — Unlawful occupation — Eviction — Statutory eviction — Groups — Identification of members — Resistance to service — Instigators to non-compliance with eviction orders — Recommendations.

Headnote : Kopnota

In this case the owners of an inner-city building obtained an eviction order D against its occupants; the order was executed; and the evictees were rendered homeless. They then applied, inter alia, for rescission of the order, and that the City of Johannesburg provide them with temporary emergency accommodation. The court ultimately dismissed the rescission application; ordered the City to provide the accommodation; and adult evictees who were able to, to pay the City R10 a day for it (see [5], [19], [23], [39], E [62] – [64] and [136]).

The evictees appealed to the full bench (see [2], [5] – [6] and [86]). The issues were:

(1)

Whether the court should have rescinded the eviction order. Held, that it had correctly not done so (see [87], [107]).

(2)

Whether it was lawful for the City to charge for temporary emergency F accommodation. Held, that it was, provided the amount was affordable (see [115], [118], [120] and [134]).

(3)

Whether the amount was reasonable (s 26(2) of the Constitution). Held, that it was: it was less than what the evictees had tendered to pay the building's owners as rental, were their occupation restored (see [101], G [121], [135] and [138]).

(4)

Whether it was lawful for the City to engage a private party to provide the accommodation. Held, that it was (see [125]).

(5)

Whether it had been reasonable to outsource provision of the accommodation. Held, that it had been: the evictees had declined the only City-run and -owned accommodation that was available (see [50], [73], [126], H [141] – [142], [145] and [147]).

(6)

Whether the court erred in refusing to grant a structural order. (The order would have provided for court oversight of the City's actions towards more permanently housing the evictees.) Held, that it had not (see [153], [161] and [163]).

The court also raised the possibility of costs awards against parties who instigated I non-compliance with eviction orders; and proposed that attempts be made to resolve accommodation-allocation issues by mediation (s 7 of PIE [*] before the courts were turned to (see [160] – [161], [181] and [187] – [188]).

2017 (4) SA p633

The court further suggested that if an applicant was a group, that the group A members identify themselves in a list annexed to the group's affidavit (see [196] – [197], [201]).

Where an applicant was against a group whose members resisted identifying themselves, the applicant could obtain an order that the sheriff ascertain the identity of the group's members (see [196], [201]).

If the group's members resisted personal service, the measures described at [198] B could be employed.

Appeal dismissed (see [203]).

Cases cited

Beyers and Others v Mlanjeni and Others 1991 (2) SA 392 (C): referred to

Blue Moonlight Properties 39 (Pty) Ltd v Occupiers of Saratoga Avenue and C Another 2009 (1) SA 470 (W) ([2009] 1 All SA 485): referred to

Booysen v Booysen 1931 WLD 53: referred to

Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T): dictum at 228A applied

Carson and Others NNO v Spencer 1982 (2) SA 755 (T): referred to

Chapelgate Properties 1022CC v Unlawful Occupiers of Erf 644 Kew and D Another 2017 (1) SA 403 (GJ): referred to

City of Cape Town v Yawa and Others [2004] 2 All SA 281 (C): referred to

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another 2012 (2) SA 104 (CC) (2012 (2) BCLR 150; [2011] ZACC 33): applied

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

City of Johannesburg v Dladla and Others 2016 (6) SA 377 (SCA): referred to

Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape) 2003 (6) SA 1 (SCA) ([2003] 2 All SA 113; [2003] ZASCA 36): dictum in para [11] applied F

Communicare v Occupiers of Bardale, Stellenbosch CPD 7970/03: referred to

De Lange and Another v Eskom Holdings Ltd and Others 2012 (1) SA 280 (GSJ): referred to

Diesel Power Plant Hire CC v Master Diggers (Pty) Ltd 1992 (2) SA 295 (W): dictum at 298C applied G

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) (2009 (2) SACR 130; 2009 (7) BCLR 637; [2009] ZACC 8): dictum in paras [119] – [122] applied

Dladla and Others v City of Johannesburg and Another 2014 (6) SA 516 (GJ) ([2014] 4 All SA 51): referred to H

Ex parte Neethling and Others 1951 (4) SA 331 (A): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): referred to

Fischer and Another v Persons Unknown 2014 (3) SA 291 (WCC) ([2014] ZAWCHC 32): referred to I

Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): applied

Head of Department, Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC) (2013 (9) BCLR 989; [2013] ZACC 25): referred to J

2017 (4) SA p634

Illegal A Occupiers of Various Erven, Philippi v Monwood Investment Trust Company (Pty) Ltd and Others [2002] 1 All SA 115 (C): referred to

Kayamandi Town Committee v Mkhwaso and Others 1991 (2) SA 630 (C): referred to

Madullammoho Housing Association (Pty) Ltd v Mbambo and Others [2016] ZAGPJHC 276: referred to

Maharaj B v Barclays National Bank Ltd 1976 (1) SA 418 (A): referred to

MB v NB 2010 (3) SA 220 (GSJ): referred to

Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): dictum in para [129] applied

National C Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): referred to

Naylor and Another v Jansen 2007 (1) SA 16 (SCA): referred to

Nedcor Bank Ltd v Hennop and Another 2003 (3) SA 622 (T): referred to

Northern Assurance Co Ltd v Somdaka 1960 (1) SA 588 (A): referred to

Occupiers D of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC) (2008 (5) BCLR 475; [2008] ZACC 1): applied

Occupiers, Shulana Court, 11 Hendon Road, Yeoville, Johannesburg v Steele 2010 (9) BCLR 911 (SCA) ([2010] 4 All SA 54): distinguished

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) E (2004 (12) BCLR 1268; [2004] ZACC 7): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

Prism Payment Technologies (Pty) Ltd v Altech Information Technologies (Pty) Ltd (t/a Altech Card Solutions) and Others 2012 (5) SA 267 (GSJ): referred F to

Rabie v De Wit 2013 (5) SA 219 (WCC): referred to

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): referred to

Residents G of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Centre on Housing Rights and Evictions and Another, Amici Curiae) 2010 (3) SA 454 (CC) (2009 (9) BCLR 847; [2009] ZACC 16): dictum in para [251] applied

Shanike Investments No 85 (Pty) Ltd and Another v Ndima and Others 2015 (2) SA 610 (GJ): referred to

Standard H Bank of SA Ltd v El-Naddaf and Another 1999 (4) SA 779 (W): referred to

Thusi v Minister of Home Affairs and Another and 71 Other Cases 2011 (2) SA 561 (KZP): dictum in para [56] applied.

Legislation cited

The I Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: see Juta's Statutes of South Africa 2015/16 vol 6 at 4-435.

Case Information

JR Brickhill (with JG Bleazard and E Webber) for the appellants.

RJ Stevenson for the first and second respondents.

L J Hollander for the fourth respondent.

2017 (4) SA p635

An appeal to the full bench (Spilg J, Coppin J and Moshidi J) against A Molahlehi AJ's refusal to rescind an eviction order granted by Kathree-Setiloane J.

Order

Appeal dismissed. B

Judgment

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...