Oosthuizen v Ethekwini Municipality
| Jurisdiction | South Africa |
| Judge | Henriques J |
| Judgment Date | 18 November 2019 |
| Docket Number | 7333/2017 |
| Hearing Date | 08 November 2018 |
| Court | KwaZulu-Natal Division, Durban |
Henriques J:
Introduction:
The present opposed application before me originates from an order of court granted on 19 December 2016 under case number 11842/2015 by my sister Moodley J, wherein the first respondent (the municipality) sought to evict occupiers from the properties described as Erf 11577 and Remainder of Erf 11578 Durban (the properties), particularly the portion known as the Newmarket Lodge. Such consent order was between the municipality, Newmarket Lodge CC, P & D Cleaning Services CC and Paul Judkins (Judkins).
The applicants instituted these proceedings on 28 June 2017 in which they sought an urgent interdict in the form of a rule nisi against the respondents preventing their eviction from the properties and disconnecting their water and electricity supply to the Newmarket Lodge pending determination of this application.
The relief sought in the notice of motion, although crafted in the form of a rule nisi, is for interim relief pending the final determination of this application. The second respondent has not participated in these proceedings.
The relief foreshadowed in the notice of motion is the following:
That a Rule Nisi do issue calling upon the first respondent to show cause on ___________ to ________________ 2017 at 09h30 in the forenoon or so soon thereafter as the matter may be heard, why an Order should not be granted in the following terms;
That the first respondent be and is hereby interdicted from evicting the applicants from the properties described as Erf 11577 and Remainder of Erf 11578 Durban, and particularly the portion thereof known as the Newmarket Lodge, Jaco Jackson Drive, Durban ("the Newmarket Lodge") in terms of the Order granted by Her Ladyship Madam Justice Moodley on 19 December 2016 under Case No: 11842/2015;
That the first respondent be and is hereby interdicted from disconnecting the water and electricity supply to the Newmarket Lodge pending the determination
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of this application, unless such termination occurs by virtue of the sixth applicant's failure to make payment for any water and/or electricity supplied by it.
That the first respondent be ordered to pay the costs of this application.
That the Orders set out in paragraphs 2.1 and 2.2 shall operate as interim relief pending the final determination of the application.'
When the matter under case no 7333/2017 served before my brother Kruger J on 3 July 2017 a consent order was taken by the municipality and the applicants as follows:
Pending the determination of this application the first respondent undertakes not to:
Instruct the second respondent to evict the applicants from the properties described as Erf 11577 and Remainder of Erf 11578 Durban, and particularly the portion thereof known as the Newmarket Lodge, Jaco Jackson Drive, Durban ("the Newmarket Lodge") in terms of the Order granted by her Ladyship Madam Justice Moodley on 19 December 2016 under Case No: 11842/2015;
Disconnect the sixth respondent's water and electricity supply, account number 83601282671 Newmarket Lodge pending the determination of this application, unless such termination occurs by virtue of the sixth applicant's failure to make payment for any water and/or electricity supplied by it.
Costs are reserved.'
The relief sought in the notice of motion was interim relief pending the final determination of the application. However, in the applicants' heads of argument Mr Eades who appeared, recorded that the interdict is sought until such time as the municipality has complied with its statutory obligations in terms of s 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act [1] (PIE Act). Even though the heads of argument indicate that the applicants will seek an amendment to the papers, at the hearing of the matter no such amendment was sought
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and instead Mr Eades handed up a draft order seeking the referral of the matter for the hearing of oral evidence. The amendment to the notice of motion is inconsequential in my view, as the reference in the notice of motion can only be a reference to the first respondent.
The municipality opposed the application and the referral for the hearing of oral evidence. Ms Mahabeer who appeared for the municipality, indicated that the application ought to be decided on the papers. Even though the applicants raised the issue of non-compliance with the PIE Act, the municipality did not institute a counter-application for reasons that will become apparent in the course of the judgment.
Issues for determination:
From a reading of the application and the respective heads of argument, the following issues require determination namely:
whether or not there are disputes of fact, which ought to be referred for the hearing of oral evidence;
whether the applicants reside at the properties and occupy the properties through Newmarket Lodge CC, P & D Cleaning Services CC and/or Judkins;
whether or not the municipality is obliged to comply with the provisions of the PIE Act prior to evicting the applicants from the properties;
whether the order of 19 December 2016 applies to the applicants and the municipality is not obliged to comply with the PIE Act.
whether Judkins acted as agent for the applicants and was authorised to consent to the order of Moodley J; and
whether in respect of the fifth, sixth and seventh applicants, although they are commercial sub-tenants, the order of 19 December 2016 applies to them.
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The municipality submits that the applicants are disqualified from obtaining a final interdict for the following reasons namely:
the applicants have not established a clear right to an interdict;
they have an alternative remedy, which lies against Judkins, their agent, who consented to the eviction order on their behalf;
as the applicants are sub-lessees, they share no contractual nexus with municipality; and
the applicants are attempting to subvert a valid and extant order of court to frustrate the municipality's right as owner of the property.
The municipality indicates that it opposes the referral for oral evidence as on the applicants version, four occupants including the fifth, sixth and seventh applicants are commercial sub-tenants and the municipality need not comply with the PIE Act. Consequently, they are subject to the eviction order and have no right to the relief sought. The municipality submits that the remaining applicants have not advanced any factual basis to support the contention that they reside on the properties. In addition, the fourth and ninth applicants took occupation of the properties after the grant of the eviction order.
In addition, the municipality submits that the following common cause facts are fatal to any application by the applicants namely:
Newmarket Lodge CC initially opposed the eviction order but did not file an answering affidavit;
Judkins, at the time of the application, admitted to being in occupation of the properties and operating the business of Newmarket Lodge CC;
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Judkins appeared to have been appointed as the applicants' agent as he was formally joined as a party to the eviction application and consequently consented to the eviction order;
some of the applicants derive their occupation through Newmarket Lodge CC and the remainder, on their own version, through each other.
Factual matrix :
Case No. 11842/2015: Ethekwini Municipality and Newmarket Lodge CC
The municipality obtained an order on 19 December 2016 under case number 11842/2015 evicting P & D Cleaning Services CC, Judkins and all persons occupying through them from the properties. The order was obtained by consent between the municipality, P & D Cleaning Services CC and Judkins and refers to the portion of the property known as Newmarket Lodge, Jaco Jackson Drive, Durban. It extends to not only P & D Cleaning Services CC and Judkins but to all persons occupying.
When it obtained the order, the municipality did not comply with the provisions of, inter alia, s 4(2) of the PIE Act as the properties were regarded and are regarded as commercial and not residential properties.
The municipality instituted these proceedings in November 2015 in which it sought the following relief:
'1.
THAT the respondent and all persons occupying through it are ordered to vacate the properties described as Erf 11577 and Remainder of Erf 11578 Durban, and particularly the portion thereof known as Newmarket Lodge, Jaco Jackson Drive, Durban, and to deliver vacant possession thereof to the applicant within five (5) days of service of this order upon the respondent.
2.
THAT in the event of the respondent or any person occupying through it failing to vacate the property in accordance with prayer 1 above, the sheriff or his deputy is authorised and directed to evict the respondent, and all persons occupying through it, from the property referred to in prayer 1 and to deliver vacant possession thereof to the applicant.'
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In the founding affidavit the municipality as owner of the properties alleged that the respondent, a close corporation, Newmarket Lodge CC, was in occupation of a portion of the properties known as Newmarket Lodge. A diagram showing the block of land owned by the municipality and depicting the properties was annexed as "B" to the application papers. The properties were depicted running along the left hand western boundary of the block and the portion of the two properties occupied by the occupiers were outlined in bold.
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