Shanike Investments NO 85 (Pty) Ltd and Another v Ndima and Others

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 26 August 2014
• Citation: 2015 (2) SA 610 (GJ)
• Docket Number: 22436/2014
• Counsel: M Rip SC (with A Pullinger) for the applicants. G Shumba for the respondents.
• Court: Gauteng Local Division, Johannesburg

Spilg J:

Nature of application E

[1] The first applicant is the registered owner of the property in Midrand on which is situated a complex comprising three blocks of residential flats known as Ndlovu, Komati and Letabong. There are a total of 266 individual flats. The complex as a whole is called Friendship Town. F The second applicant appears to be both the manager and letting agent. Unless otherwise required, they will be collectively referred to as the applicants.

[2] The first six respondents are occupiers of the first applicant's G complex. They have resided in the complex pursuant to written agreements of lease which in the case of the first respondent had already been terminated for non-payment of rent with effect from 15 July 2014. The seventh respondent is an organisation claiming to represent the individual respondents, although its reach may be broader. However, its constitution was not provided. The eighth respondent comprises all H those who may have attempted to blockade the entrance to Friendship Town. They were not individually identified.

[3] On 31 July 2014 the applicants brought an urgent application on notice alleging that the respondents were intimidating and threatening employees and attempting to blockade the entrance to the complex and I were organising a rent boycott. Each individual respondent, ie the first to sixth respondents, was alleged to have been actively involved in these activities.

[4] The application was divided into two parts. Part A was set down for J hearing on 31 July 2014 and the following urgent relief was sought:

Spilg J

(a)

to interdict the respondents, pending a final order to that effect A under part B, from blockading the entrance to the complex or otherwise preventing free movement in and out of the complex to the other tenants, applicants' employees, officials or agents, and from threatening, intimidating or assaulting any of them;

(b)

to authorise the applicants to serve a notice under s 5(2) of the B Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) of their intention to evict the first to sixth respondents on the basis that there exists 'a real and imminent danger of injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land'. A court order was also sought in regard to the mode of effecting service of the notices and all other papers. C

[5] The second part of the application, under part B, was set down for hearing on 12 August 2014. In this part the applicants sought:

(a)

Final orders in respect of the interim interdicts under part A; and

(b)

orders evicting the first to sixth respondents, in terms of s 5 of PIE, D from their units in the complex, pending the outcome of proceedings to be instituted for a final order.

[6] The application was served through the sheriff on each of the first to sixth respondents by 13h00 on 31 July. Although service was effected on E the person who was in occupation at each individual respondent's unit, none was prepared to provide his or her identity. Service was also effected generally by explaining the relief being sought in English, Sesotho and isiZulu through the use of a loud-hailer.

[7] It is important to note that at this stage the application served on each of the respondents gave notice that: F

(a)

the urgent relief under part A was set down for hearing at 16h00 on Thursday 31 July and, if anyone intended opposing the relief sought, that answering affidavits were to be filed by 15h00;

(b)

the semi-urgent relief under part B was set down for 12 August at 16h00 and a notice of intention to oppose was to be filed by 1 August with answering affidavits in by 16h00 on 4 August. G

[8] The respondents were therefore afforded two court days (albeit that there was an intervening weekend) to file their affidavits. There were, however, seven court days with two intervening weekends between service on 31 July and the hearing on 12 August for the final relief sought, which included the s 5(1) interim eviction of the first to sixth H respondents.

[9] My brother Makhanya J granted the interim interdicts and authorised the service of the s 5(2) notices. The court also directed the mode of service for the notices and all court papers. It is evident that the court regarded the matter as urgent and the relief under part A justified, albeit I that the threshold then was the establishment of a prima facie right, though open to some doubt, with the balance of convenience favouring its grant.

[10] On 9 August 2014 and by 10h01 all the s 5(2) notices were served in accordance with the directions given. In all but two instances personal J

Spilg J

A service was effected. In respect of the two, the notice was affixed to the door of the relevant respondent's unit. The s 5(2) notices also repeated that the application for the eviction of the first to sixth respondents would be heard by the court on 12 August 2014.

[11] On Tuesday 12 August 2014 respondents (save for the second B respondent) and many others attended court. One of the tenants, who apparently claimed to be an attorney, informed the court that the respondents intended opposing the final order sought as well as the ejectment of the first to sixth respondents. They also wished to challenge the urgency of the matter. However, they had not filed any opposing C papers and sought a postponement.

[12] By this stage the second respondent appears no longer to have been in occupation or the issue was resolved in respect of him and the matter only proceeded against the other respondents.

D [13] Since all the respondents had been served with the application on 31 July informing them that part B of the order would be heard on 12 August and the s 5(2) notices had been served on the morning of 9 August on the six affected respondents, I directed that if any of the respondents intended filing opposing affidavits they were to do so by Thursday 14 August and I postponed the hearing to the Friday.

E [14] The respondents filed an answering affidavit to which the applicants responded. On Friday counsel appeared on behalf of the respondents and I proceeded to hear argument.

The issues

F [15] The following issues were raised by the parties in relation to the individual respondents whose immediate eviction was sought:

(a)

Whether the matter is urgent;

(b)

whether there was a real and imminent danger of substantial injury or damage to any person or property if each individual respondent G were not immediately evicted;

(c)

whether there was sufficient evidence to identify each respondent individually as being responsible for such a dangerous situation, if it existed;

(d)

whether each respondent was exercising a legitimate right;

(e)

H whether there was another effective remedy.

[16] The court also requested the parties to address it on the constitutionality of s 5(1) of PIE.

Section 5(1) of PIE

I [17] The provisions of s 5 of PIE read as follows:

'5 Urgent proceedings for eviction

(1) Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied J that —

Spilg J

(a)

there is a real and imminent danger of substantial injury or damage A to any person or property if the unlawful occupier is not forthwith evicted from the land;

(b)

the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought if an order for eviction is granted; and B

(c)

there is no other effective remedy available.

(2) Before the hearing of the proceedings contemplated in subsection (1), the court must give written and effective notice of the intention of the owner or person in charge to obtain an order for eviction of the unlawful occupier to the unlawful occupier and the municipality in whose area of jurisdiction the land is situated. C

(3) The notice of proceedings contemplated in subsection (2) must —

(a)

state that proceedings will be instituted in terms of subsection (1) for an order for the eviction of the unlawful occupier;

(b)

indicate on what date and at what time the court will hear the proceedings; D

(c)

set out the grounds for the proposed eviction; and

(d)

state that the unlawful occupier is entitled to appear before the court and defend the case and, where necessary, has the right to apply for legal aid.'

[18] I may add there has been no challenge to the procedural requirements. It is the substantive issues that are being challenged. E

Requirement of urgency

[19] It will be apparent that the subsections to s 5(1) substantially mirror the requirements for an urgent interim interdictory or mandatory order, namely: F

•

The basis of urgency and a well-grounded apprehension of irreparable harm, which is set out in ss 1(a);

•

the factors affecting the balance of convenience which are set out in ss 1(b);

•

there is no other effective remedy (ss 1(c)); and G

•

the right to eject is dependent on the respondent being an 'unlawful occupier' for the purposes of affording the remedy under s 5, and as that term is defined in s 1.

[20] It is therefore evident that the requirements, including that of urgency, are statutorily prescribed. The requirement of urgency will be met, in terms of s 5(1)(a), if the court — H

'is satisfied . . . that there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land.'

'Land' in the s (1) definition...