Concerned Aggrieved Tenants of SABC and Others v South African Broadcasting Corporation and Others (M129/2021) [2021] ZANWHC 55 (8 June 2021)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

CASE NO: M129/2021

In the matter between:

CONCERNED AGGRIEVED TENANTS OF SABC

1ST APPLICANT

PATRICIA MATHER AND 9 OTHERS

2ND APPLICANT

AND

SOUTH AFRICAN BROADCASTING

1ST RESPONDENT

CORPORATION

GROUP CHIEF EXECUTIVE OFFICER,

2ND RESPONDENT

SOUTH AFRICAN BROADCASTING

CORPORATION NO

CHAIRPERSON OF THE BOARD OF

3RD RESPONDENT

DIRECTORS SOUTH AFRICAN

BROADCASTING CORPORATION

CHIEF OPERATING OFFICER OF THE SOUTH

4TH RESPONDENT

AFRICAN BROADCASTING AUTHORITY

MINISTER OF COMMUNICATION AND DIGITAL

5TH RESPONDENT

TECHNOLOGIES

ANY HIGHEST BIDDER/BUYER OF THE

6TH RESPONDENT

PROPERTIES AT THE UNLAWFUL AUCTION HELD

BY THE SABC ON THE 19TH MAY 2021 OR ANY

FURTHER DATE RELATING TO THE PROPERTIES

OCCUPIED BY THE APPLICANTS

REGISTRAR OF DEEDS OFFICE, NORTH WEST

7TH RESPONDENT

REASONS FOR JUDGMENT

DJAJE J

[1] This urgent application was set down for 31 May 2021 and after argument the order was handed down on 1 June 2021. The following order was granted:

“1. The application is dismissed.

2. Applicants are ordered to pay costs.

3. Reasons for this order will be furnished later.”

[2] I now furnish the reasons for the abovementioned order.

[3] This matter has a bit of history and it is important that I briefly outline the background thereof. The applicants are residing in and occupying property belonging to the first respondent by virtue of lease agreements entered into previously. The first respondent has taken a decision to sell the said properties. There has been a number of applications brought by the applicants in an attempt to interdict the first respondent from selling the said properties by public auction. The applicants have not succeeded in their attempts to interdict the first respondent from holding an auction of the said properties. In March 2021 the applicants brought a review application to review the decision of the first respondent to dispose of its properties. The said application is pending in this Court.

[4] On 19 May 2021 the first respondent held a public auction of the residential properties occupied by the applicants. The first respondent also issued and served the applicants with eviction applications to be heard on 24 June 2021. In the meantime the applicants launched an urgent application on 27 May 2021 with the following notice of motion:

“1. Condoning the Applicants' non-compliance with the forms and time frames prescribed by the Rules of. Court relating to service of process and dispensing of this application on an urgent basis in terms of Rule 6(12) of the Uniform Rules;

2. Granting the interim relief by interdicting the seventh (7th) respondent from registering the transfer of ownership to any party constituting the six (6th) respondent who became a buyer in terms of being a highest bidder in the auction held by the SABC held on the 19th MAY 2021 or any other date relating to the properties owned by the SABC pending the finality of the Review Application in respect of this matter;

3. That the Rule Nisi be issued calling upon the respondent(s) to show cause before this court on the date to be arranged with the Registrar after the finality of the Review Application as to why the Rule Nisi issued should not be confirmed;

4. Directing the first respondent to pay the costs of this application at attorney and client scale; and

5. Granting further and/or alternative relief.”

[5] The crux of the application by the applicants is to interdict the transfer of the properties into the names of the successful bidders at the auction of 19 May 2021 pending the finalisation of the review application. The respondents raised a few points in limine which I will first deal with.

Lack of authority of the Attorneys

[6] It has been argued for the respondents that the Attorneys of the applicants have been served with a notice in terms of Rule 7(1) of the Uniform Rules of Court requesting a power of attorney for all the applicants in this matter and there has been no response. The reason for such a notice by the respondents is based on the conduct of some of the applicants who have individually approached the first respondent to negotiate in respect of when they would vacate the properties and one who successfully participated in the public auction of 19 May 2021.

[7] In contention, the applicants argued that the respondents should approach court for leave and on good cause show why they believe that the attorneys have no authority to act for all the applicants.

[8] Rule 7(1) provides that:

“7 Power of Attorney

(1) Subject to the provisions of subrules (2) and (3) a power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 10 days after it has come to the notice of a party that such person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed, whereafter such person may no longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application.”

[9] In Eskom v Soweto City Council 1992 (2) SA 703 (WLD) at 705F it was stated that: “ If the attorney is authorised to bring the application on behalf of the applicant, the application necessarily is that of the applicant…..As to when and how the attorney’s authority should be proved, the Rule-maker made a policy decision. Perhaps because the risk is minimal that an attorney will act for a person without authority to do so, proof is dispensed with except only if the other party challenges the authority.”

[10] The Court in South African Allied Workers’ Union v De Klerk 1990 (3) SA 425 (ECD) at 436F/J-437B held that:

“The power of attorney contemplated by Rule 7(1) is a power to take certain formal procedural steps, namely to issue process and to sign court documentation such as a summons or notice of motion on behalf of a litigant….Rule (7)(1) is, in essence, merely a means of achieving production of the ordinary power of attorney in order to establish the authority of an attorney to act for his client. It may be called for simply by notice and without an evidentiary challenge for such authority. Moreover the authority of a litigant’s attorney to represent him is not a fact which need be alleged in pleadings or established at a trial…..”

[11] In this matter the respondents are well within their rights to challenge the authority of the applicants’ attorneys to act on behalf of all the applicants. Especially that there were no confirmatory affidavits by the third to eleventh applicants attached to the founding affidavit deposed to by the second applicant. In addition the respondents allege that some of the applicants have directly contacted the first respondent to enter into negotiations relating to when they intend vacating the properties. There is also the issue that one of the applicants, Mr Moema successfully participated in the auction of 19 May 2021 which the applicants allege was unlawful. Since the challenge was put forth, the applicants’ attorneys should have satisfied the Court that they have the required authority to act. This point is fatal to the applicants’ application and on its own is a ground for the dismissal of the application.

Non-joinder

[12] The other point in limine raised by the respondents was the non-joinder of the auctioneer who conducted the auction on 19 May 2021 and the successful bidders at the auction. The respondents argued that the crux of this application is about the rights of the bidders to have the properties transferred into their names and the contractual obligations of the auctioneers to the respondents and the successful bidders. As such they should have been joined in these proceedings.

[13] The applicants argued that the auctioneer is not an interested party to these proceedings as they were only hired by the first respondent to conduct the auction only. Further that they would not be affected by the outcome of this application. In relation to the successful bidders the applicants submitted that due to the urgency of the application, they were not able to obtain the details of who the successful bidders were and just cited them under sixth respondent as ‘successful bidders’ and served them on the correspondent attorney of the respondents.

[14] The Supreme Court of Appeal in the case of the Judicial Service Commission v Cape Bar Council (Centre for Constitutional Rights as amicus curiae)(818/11)[2012] ZASCA 115 (14 September 2012) at para 12 dealt with the issue of joinder of parties as follows:

“It has by now become settled law that the joinder of a party is only required as a matter of necessity-as opposed to a matter of

convenience-if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned (see eg Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA) para21).”

[15] The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder, has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned. See: Bowring NO v Vrededorp Properties CC 2007 (5) SA 391 (SCA).

[16] The nub of this application is to interdict the transfer of properties into the names of the successful bidders at the auction of 19 May 2021. On its own this implies that the rights to property of the bidders will certainly be affected by the outcome of this application. They should be afforded the opportunity to defend their rights. They have paid deposits at the auction and have entered into contracts with the auctioneer in relation to the payment of the balance and the subsequent transfer of the properties. The outcome of this application will certainly affect the right of the auctioneer as well. Failure to join the successful bidder as well as the auctioneer

is fatal to the application and this point in limine should be upheld.

Urgency

[17] The applicants argued that this application was urgent based on the fact that there are eviction applications brought by the first respondent against them set down for 24 June 2021.Further that if the transfer is not interdicted the eviction application will be successful against the applicants. It was argued that the transfer of the property will result in the applicants losing their right to property, dignity and privacy. The applicants also cited the pending review application as a ground for urgency.

[18] The respondents argued that there is self-created urgency by the applicants in that they knew since November 2020 that the first respondent intended to dispose of its non-core assets. They tried unsuccessfully to interdict the auction previously with applications that were dismissed by this Court including the Constitutional Court. Further that the applicants were aware of the auction of 19 May 2021 but they failed to bring an application to interdict that auction.

[19] Rule 6 (12) of the Uniform Rules of Court requires an applicant bringing an urgent application to give the factors that justifies the hearing of the matter on an urgent basis and why they cannot be afforded substantial redress at a hearing in due course. All this should be done in the founding affidavit. In East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others 2012 JOL 28244 (GSJ) the court held: “The import thereof is that the procedure set out in Rule 6 (12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course.”

[20] As stated above the applicants argued that this application was urgent as there was a pending review application and that they have been served with eviction applications to be heard on 24 June 2021. In the founding affidavit there is no explanation why the applicants will not be afforded substantial redress in due course if

the transfer is not interdicted urgently. All that was argued was that they would lose their right to property and shelter. It is important to note that this is not an application for the eviction of the applicants. That application is still pending and the applicants are well within their rights to oppose it.

[21] The applicants have been aware since November 2020 about the decision of the first respondent to auction the property. They were aware of the auction of 19 May 2021 but did nothing to stop such auction from taking place, instead one of the applicants even successfully participated in the auction. They waited until they had been served with the eviction applications to bring this urgent application. The applicants were unable to explain when the transfer of the said properties was expected to happen and why they would not be afforded substantial redress in due course if the transfer was not interdicted. The urgency in this matter is self–created and on this point the application could have been struck off the roll due to lack of urgency. However due to the history of this matter it was important to deal with other points raised including the merits as well.

Lack of authority by second respondent

[22] In the replying affidavit the applicants challenged the authority of the deponent to the answering affidavit who is the Group Chief Executive Officer (“GCEO”) of the first respondent. According to the applicants the GCEO relied on the Delegation of Authority Framework (“DAF”) of 2018/2019 which authorises him to act on behalf of the first respondent. However, the applicants argued that the said DAF ceased to be in force in January 2020 and the implication being that it cannot be relied on for authority in these proceedings. The applicants’ case was therefore that the answering affidavit filed cannot be considered by this court.

[23] In contention, the respondents first submitted that the deponent to the answering affidavit has been cited in his official capacity as the second respondent and is entitled to depose to the answering affidavit on his behalf as the GCEO. Secondly, the DAF relied on is indeed of 2018/2019 but it does not state anywhere that it ceased to be in force in January 2020. It was argued that the applicants have not been able to point to any clause of the DAF which deals with the period of the enforceability of the DAF. This argument by the respondents stands to be accepted and the point of lack of authority raised by the applicants is without merit and is dismissed.

Requirements of Interim Interdict

[24] It is trite that an applicant for an interim interdict must establish a prima facie right; reasonable apprehension of irreparable harm; balance of convenience must favour the grant of the interdict and the applicant must have no other remedy if the interdict is not granted.

[25] The applicants argued that they have a prima facie right in this matter as they are in lawful occupation of the properties. They further rely on the pending review application for the granting of the interim interdict.

[26] The respondents in argument referred to the Constitutional Case of National Treasury v Opposition to Urban Tolling Alliance & Others 2012 (6) SA 223 (CC) that any litigant is precluded from seeking interim relief against an organ of state if the only right being asserted is one of pending review. According to the respondents the applicants cannot rely on the pending review application to seek an interim interdict without establishing the requirements of an interim interdict.

[27] The applicants in their papers as stated above, rely on their right to occupy the properties and the pending review as the requirements of an interim interdict. It is clear in the papers before me that the relationship between the applicants and the first respondent is that of a lessee and lessor and has always been regulated by lease agreements. According to the respondents that relationship has been terminated as the applicants were notified of the decision to dispose of its non-core assets. The auction has been held and was not challenged by the applicants. It has not been established how the applicants can claim to have any right let alone prima facie right to properties which have been sold at a public auction. Worse for the applicants, one of them allegedly participated in the said auction and succeeded to bid for one of the properties. On this point alone the application stands to be dismissed.

[28] The applicants have failed to establish that there is apprehension of irreparable harm if the interdict is not granted. This is in direct contrast with the action of the applicant who participated in the auction. Surely, it would be mind boggling that he would not want to enforce his rights to have the property transferred into his name. Further that the applicants were well aware of the auction and decided not to participate or interdict same. The remedy available for the applicants is to participate in the pending litigation of the review application for recourse. In my view, the applicants failed to make out a case for an interim interdict and the application should fail on that basis.

Costs

[29] It is trite that costs should follow the result and I see no reason why the applicants should not pay the costs of this application. The respondents argued that the applicants’ attorneys should be ordered to pay the costs should they fail to comply with the Rule 7(1) notice. There was no notice given to the applicants’ attorneys that a cost order would be sought against them and in my view such an order cannot be made without having granted the applicants’ attorneys an opportunity to state why it cannot be made.

[30] It is for the above reasons that the application was dismissed and the applicants ordered to pay costs.

J.T. DJAJE

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING

: 31 May 2021

DATE OF JUDGMENT

: 08 June 2021

COUNSEL FOR THE APPLICANT :

ADV.MOKGOSI

COUNSEL FOR THE RESPONDENT : ADV.TISANI with

ADV SEKWAKWENG