The Trustees for the time being of the East London Hebrew Congregation v Galperin and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: B Hartle J
• Judgment Date: 13 May 2022
• Court: East London Circuit Local Division
• Hearing Date: 09 February 2022
• Docket Number: EL748/2021

Hartle J:

Introduction:

[1]

The applicant, The East London Hebrew Congregation ("the Congregation"), [1] issued out an application for the eviction of the first and second respondents ("the respondents") [2] from premises owned by it situated at 7 Osborne Road, Selborne, East London ("the property"). [3]

[2]

It alleges that the respondents came to occupy the property, initially lawfully, as an incidence of the first respondents' employment with it. It alleges that the second respondent, who is married to the first respondent, acquired her right to occupy the home "through" her spouse.

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[3]

It is apparent from the applicable employment agreement that the first respondent was appointed to serve the Congregation as its Rabbi and spiritual leader, and the second respondent as Rebbetzin, teacher and Mashgiach within the Congregation. The employment agreement was concluded with them in June 2016 and would, in the ordinary course, have terminated on 31 May 2024. [4]

[4]

The relevant clause in the agreement that provides for the respondents' right to occupation of the rabbinical home for the natural duration of their employment, is made provision for as follows:

"5.

Accommodation

5.1

In addition to the above remuneration and allowances, the Official and the Official's Wife shall be provided with accommodation, free of charge, at the Congregation's partly furnished house in Osborne Road, Selborne, East London or such alternative accommodation of a similar nature, as specified by the Congregation."

[5]

The agreement provides in clause 13 for its termination, other than in circumstances where it expires by effluxion of time or on notice, as follows:

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"13.

Termination

The parties record that termination of the agreement due to misconduct, incapacity and operational requirements shall be effected through the procedures prescribed in the Labour Relations Act.

The parties further specifically record that the failure to fulfil the duties specified in Clause 9 would amount to misconduct." [5]

[6]

Clause 15 is also of significance since the parties rely on it for different reasons. The applicant alleges that a dispute that arose between itself and the first respondent following his dismissal - if it was his desire to challenge it, (which he did not), fell to be settled in terms of the standard procedures outlined and prescribed in the Labour Relations Act as is provided for in clause 13. In this regard the applicant claims that these procedures were properly adhered to which rendered the matter final, thus entitling them to bring the present application as the right to occupy would have fallen away together with the termination of the first respondent's employment. The respondents, on the other hand, assert that the dispute fell - or since it is a live one still, falls to be resolved exclusively before the Jewish Ecclesiastical Court ("the Beth-Din"). The clause reads as follows:

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"15.

Beth Din

The Official, the Official's Wife and the Congregation agree to accept the authority of the Beth Din to make final and binding decisions in all matters of the Jewish Law other than in the instance of disputes to be settled in terms of Clause 13."

(Emphasis added)

[7]

The power of the Beth-Din to settle disputes (ostensibly other than those referred to in clause 13 of the parties' employment agreement) is outlined in paragraph 10 of the Articles of Association of the Union of Orthodox Synagogues of South Africa ("the Council"), of which the Congregation is both a member and constituent, as follows:

"10.

ARBITRATION

Disputes between any Constituents shall be submitted for arbitration to the Management Committee, with the right of appeal to the Johannesburg Beth Din. Disputes between any Constituents and officials in their employ shall be submitted to the Johannesburg Beth Din, whose decision/s shall be final and binding."

(Emphasis added.)

[8]

The respondents, until the first respondent's dismissal, would ostensibly have been officials in the employ of a constituent of the Council.

The applicant's cause of action:

[9]

The applicant as owner of the property and duly authorized by resolution asserts that the respondents' occupation of the property, which is subsidiary to the employment contract, became unlawful when it terminated the first respondent's services under the contract, including the right to occupy the

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rabbinical home, due to claimed misconduct on his part, ostensibly after resort by it to prior internal disciplinary proceedings. What that procedure was is given some context in the termination letter that the applicant put up as proof of the allegation that it terminated the first respondent's employment with the Congregation and subsidiary tenancy in a notice addressed to him dated 3 February 2020 ("the termination letter"). The letter reads as follows:

"RE: DISCIPLINARY INQUIRY

We refer to the disciplinary inquiry held on Wednesday, 29 January 2020.

We attach hereto, for your attention, a copy of the chairperson's findings and recommendation. [6]

The committee [7] has considered the recommendation and has decided to implement the recommended sanction.

In light of the above, you are hereby advised that your employment as Rabbi of the East London Hebrew Congregation is hereby terminated with immediate effect.

Your right to reside in accommodation provided by the Congregation terminates with your employment. Despite the foregoing, a decision has been taken to allow you to remain in your current accommodation subject to your expressly agreeing:

1.

vacate the premises by no later than 31 March 2020; and

2.

agree to representatives of the Congregation and/or those appointed by the Congregation having reasonable access to the premises for purposes of measuring with a view to drafting plans for anticipated alterations.

It is emphasized that the access to the premises will be on reasonable notice and on the basis of terms arranged with you and/or Rebbetzin Galperin.

Should we not receive your express agreement and conditions set out in paragraphs 1 and 2 above, the offer in respect of the accommodation will be withdrawn and steps taken to vacate you from the premises without delay.

Should you believe that your dismissal is unfair, you are reminded of your right to refer a dispute to the CCMA, within 30 (thirty) days from today."

[10]

This was followed by a further letter dated 9 February 2020 addressed by the applicant's attorneys of record to both respondents (ostensibly emailed on the

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11th) declaring that they are in "illegal occupation" of the property - presumably the first respondent must have spurned the Congregation's offer to warrant the stance being adopted days after the termination letter had been sent that he and his wife were already regarded as occupying the property without its consent, directing them to pay all charges due to the municipality other than the rates - which until that point had ostensibly been covered by the Congregation as a term of the employment agreement, and foreshadowing that eviction proceedings would ensue "shortly".

[11]

The applicant claims that "written requests" forwarded by its attorneys to the respondents to vacate the premises (the letter of 9 February 2020 aforesaid held up as the only example) did not have the desired effect and was taken as the respondents' refusal to meet the Congregation's request, hence the need for the present application which could not launched at the end of March 2020 as had been forewarned. This is because by then the COVID-19 pandemic had hit home, a state of national emergency was declared by the government pursuant to the provisions of the Disaster Management Act, No. 57 of 2002 ("the DMA"), and the country placed under a hard lockdown. Because the eviction of persons from residential premises was not permitted at the time under constraint of the regulations promulgated under the DMA, the respondents were by default given some respite over the period of the hard lockdown, but the request for them to vacate the premises took on formal proportions in mid-June 2020 when the present application was issued to vindicate the claimed unlawful occupation of the applicant's property.

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[12]

It is common cause that the respondents have remained in occupation since 3 February 2020 and oppose the present application. [8] The municipality has not entered the fray.

[13]

Apart from asserting in the founding affidavit that it had met the jurisdictional grounds postulated by the relevant provisions of the Prevention of Illegal Eviction from Unlawful Occupation of Land Act, No. 19 of 1998 ("the PIE Act") as well as the procedural requirement of service of effective notice of the proceedings stipulated by section 4 (2), the applicant asserted that the respondents have raised "no valid defence" to the applicant's claim for their eviction from the property and that it is "just and equitable" within the meaning contended for in the PIE Act in the particular circumstances that they be ordered to vacate the property within a suggested time frame. [9]

[14]

The applicant asserts in this respect that it is being inconvenienced by the respondents' holding over their occupation of the property since this effectively precludes them from appointing a Rabbi for the Congregation who is expected to be accommodated in the designated rabbinical home. Apart from the compromise of their owner's right to possession of the property, they also allude to the fact that the Congregation has been hampered in its ability to administer to the spiritual needs of its members, I would venture to suggest as a result of an ongoing spat between it and the first respondent, the details of which I will...