Mahomed NO and Another v Kassem t/a Patel and Company (27161/16) [2017] ZAGPPHC 499 (18 August 2017)

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION,PRETORIA

Case Number: 27161/16

REPORTABLE

Not of interest to other judges

Revised

18/8/2017

In the matter between:

RASIA MAHOMED N.O

(in her capacity as duly appointed executrix

In the Estate Late Shamsoodeen Mahomed) FIRST

APPLICANT

RASIA

MAHOMED SECOND

APPLICANT

and

SHIKA KASSEM tla PATEL AND

COMPANY FIRST

RESPONDENT

TSHWANE

METROPOLITAIN MUNICIPALITY SECOND

RESPONDENT

Coram:

HUGHES J

JUDGMENT

HUGHES J

[1] In this application the applicant, RABIA MAHOMED N.O, the owner seeks to evict the first respondent, BHIKA KASSEM t/a PATEL AND COMPANY, from its premises ERF 652, Asiatic Bazaar Ext 1, situated at 488 9th Street Marabastad, Pretoria (the property). The second respondent is the Tshwane Metropolitan Municipality.

[2] The first respondent occupies the property and operates a commercial entity therefrom. Both respondents opposed the application. The second respondent however did not take the matter any further than filing its notice to oppose.

Background

[3] Back in the 1960's the Community Development Board (COB) awarded the property to the applicant and her late husband Mr Shamsoodeen

Mahomed. In the 1960's people of Indian decent could not own immovable property in South Africa. Mr Mahomed thus leased the property from COB. In 1962, Mr Mahomed and the first respondent entered into an oral lease agreement whereby the first respondent leased the property from Mr Mahomed. Since 1962 the first respondent has conducted its business on the property.

[4] The first respondent alleges that in 1985 a lease was concluded with the second respondent, then the COB.

[5] The applicant alleges that since 1987 the first respondent has failed to pay rental in terms of a lease agreement for the property. It must be mentioned that the COB took control of the property in 1987 and Mr Mahomed, as lessee, was responsible for the payment of the rates assessment. In January 1987 the first respondent stopped paying rental to Mr Mahomed.

[6] According to the first respondent, in terms of the lease of the property, it contracted with COB until 2002 there after it contracted

to the second respondent.

[7] During September 2008 the Commission on Restitution of Land Rights, after a determination that Mr Mahomed was the rightful owner,

transferred the property to Mr Mahomed and the applicant. The title deed is annexed to the applicant's papers as annexure 'RM4'. The applicant and her deceased husband, Mr Mahomed, are recorded as being the owners of the property.

[8] The applicant states that the first respondent on many occasions tried to purchase the property from the applicant. However this did not materialise. The applicant on the other hand tried on many occasions to have the first respondent removed from the property. An eviction application was eventually instituted in 2014 in the Magistrate's Court. This application was subsequently withdrawn.The aforesaid events culminate into this eviction application.

[9] The applicant states that the first respondent was aware of the transfer as far back as 2013. Since that time the first respondent

has not taken any steps to review the decisiontaken by COB to register the property in the applicant and Mr Mahomed's names.

The point in limine raised

[10] The first respondent raised a point in limine to the eviction application. It contends that the eviction was launched in the Magistrate's Court and the same grounds in that application are repeated in this application. Of note is the fact that the affidavit which was filed in the Magistrate's Court is absent before this court.

[11] From the heads of argument of the first respondent Ican discern that the first respondent takes issue that there are disputes of facts which cannot be resolved on the papers and thus the application for an eviction ought to be dismissed.

[12) The applicant argues that the dispute before me is whether the applicant has the right to evict the first respondent.This is a question of law and ought to be determined by motion proceedings. The applicant referred to the dicta of Innes CJ in Frank v Ohlsson's Cape Breweries Ltd 1924 AD 289 at 294:

"But where the facts are really not In dispute, where the rights of the parties depend upon a question of law, there can be no objection, but on the contrary a manifest advantage In dealing with the matter by the speedier and less expensive method of motion."

[13] This is exactly the situation in this dispute, whether the applicant has a right or has established a right to evict the first respondent. This is a question of law and thus there cannot be any disputes of facts.

[14] The point in limine must fail.

The defences raised

[15] To circumvent being evicted by the applicant the first respondent raises a number of defences which I proceed to deal with below.

[16] The first defence being that the procedure adopted in respect of the transfer of the property to the applicant and her late husband was procedurally flawed and thus irregular for want of compliance with section 79(18) of Ordinance 17 of 1939.

[17] The relevant part of the Ordinance reads as follows:

"79 General Power

The Council may do all of the following things, namely:

(18)(a) . . .[S]ubject to the succeeding paragraphs and the provisions of any other law -

(i) let, sell,exchange or in any other manner alienate ordispose of any movableor Immovable property of council. . .;

(b) whenever a council wishes to exercise any of the powers conferred by paragraph (a) in respect of

immovable property,excluding the letting of any other property than land in respect of which the lease Is subject to section 1(2) of the Formalities In respect of Leases of Land Act 18 of 1969, the council shall cause a notice of the resolution to that effect to be-

(i) affixed to the public notice board of the Council; and

(ii) published In a newspaper In accordance With section 91 of the Republic of South Africa Constitution Act. 1983;

In which any person who wishes to object to the exercise of any such power, Is called upon to lodge his objection in writing with the Town Clerk within a stated period of not less than fourteen days from the date of the publication of the notice in the newspaper;

(c) where any objection Is received by the Town Clerk In terms of paragraph (b), the council shall not exercise the power concerned if it is -

(i) a council referred to in part I or II of the Sixth Schedule to this Ordinance, unless the council has considered any objection; or

(ii) . " ..

[18] In Ferndale Crossroads Share Block Ltd v Johannesburg Metropolitan Municipality 2011 (1) SA 24 at para [22] Mpati P had the following to say:

"[22] The effect of non-compliance with the provisions of s 79(18)(b) and (c) of the ordinance, le failure by the respondent to cause a notice of Its resolution, embodying Its intention to let the area of land described In the agreement, to be affixed to Its public notice board, and to publish It (the resolution) in a newspaper, calling for objections to the proposed lease before exercising the power to let, is that the jurisdictional fact necessary for the exercise of the power was absent. In terms of s 79(18)(c) a council 'shall not exercise the power [to let Immovable property] . . unless [It] has considered every objection'. (My emphasis.) In the absence of the necessary jurisdictional fact the respondent could not validly exercise the power, with the result that the lease element of the agreement was ab initio invalid.”

[19) The applicant in response submits that if the first respondent takes issue with the non-compliance of the procedure set out in section 79(18) then the route which the first respondent should have taken is that of review, as the decision to transfer the property to the applicant is an administrative decision in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

[20] From the answering affidavit filed, the first respondent sought in the alternative that:

“[T]he Application be suspended pending review proceedings to be instituted within 60 days in the High Court for a declaration on the validity of transfer of ownership of ERF.652, ASIATIC BAZAAR EXT 1 GAUTENG PROVINCE to Applicants on 2 October 2008.”

[21) The first respondent pointed out that the only document pertaining to the application of section 79(18) was the notice attached to its papers marked 'BK6'. This is a notice dated 24 February 2012, Notice No 245 of 2012, advising of the proposed allocation and alienation of the Erven in Marabastad (Asiatic Bazaar and Asiatic Bazaar X1,Phase 2). Incidentally the applicant's property or ERF. does not appear on this notification.

[22] Section 1of PAJA defines an administrative action as:

"any decision taken, or any failure to take a decision, by -

(a) an organ of state, when-

(i) exercising a power in terms of the Constitution or a provincial constitution, or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of the state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect....”

[23] I am in agreement with the applicant that the decision taken by the second respondent to transfer the property to the applicant and her husband was the exercise of the second respondent’s public power. In the circumstances, in terms of section 7 of PAJA, the first respondent ought to exhaust all the internal processes, which would include an application to review the procedure adopted in the execution of that power which ultimately led to the transfer of the property.

[24] Having stated the aforesaid I must point out that if the applicant fails to provide jurisdictional facts to illustrate that the procedure required, that is the preconditions, were not undertaken, then the said administrative act of the second respondent falls to be reviewed. See MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Lazer Institute 2014 (3) SA 481 (CC) at para [98]:

"[98] The outcome does not change if we consider the approval from the perspective of whether the decision-maker acted within her jurisdiction in granting approval. Jurisdictional facts refer broadly to preconditions or conditions precedent that must exist before the exercise of power, and the procedures to be followed when exercising that power. It is true that we sometimes refer to lawfulness requirements as 'jurisdictional facts'. But that derives from terminology used in a very different, and now defunct, context (namely where all errors, if they were to be capable of being reviewed at all, had to be construed as affecting the functionary's

'jurisdiction'). In our post-constitutional administrative law, there is no need to find that an administrator lacks jurisdiction whenever she fails to comply with the preconditions for lawfully exercising her powers. She acts, but she acts wrongly, and her decision is capable of being set aside by proper process of law.”

[25] Whilst in earlier cases such as Eye of Africa (Pty) Ltd v Shear 2012 (2) SA 186 at para [26] Brand JA held as follows:

"[26] n Kimberley Junior School and Another v Head, Northern Cape Education Department and Others 2010 (1) SA 217 (SCA) para 11,Brand JA said -

'(u)nder common law, necessary preconditions that must exist before an administrative power can be exercised, are referred to as

jurisdictional facts. In the absence of such preconditions or jurisdictional facts, so it is said, the administrative authority

effectively has no power to act at all (see eg Paola v Jeeva NO and Others [2003] ZASCA 100; 2004 (1) SA 396 (SCA); ([2003] 4 All SA 433) paras 11, 14 and 16).'

In Ferndale Crossroads Share Block (Pty) Ltd and Others v Johannesburg Metropolitan Municipality and Others 2011 (1) SA 24 (SCA) para 22, the same principle was enunciated by Mpatl P who said -

'(i)n the absence of the necessary jurisdictional fact the respondent could not validly exercise the power, with the result that the lease element of the agreement was ab initio Invalid'. "

[26] As PAJA is applicable, in the current proceedings of eviction, the first respondent cannot raise the issue of a procedural error based on the lack of jurisdictional facts amounting to an irregularity. Why is that so? The administrative decision has been made, correct or incorrect, it still stands until reviewed and set aside. See Ouderkraal Estate (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) at paras [26]and [27].

[27] It is prudent to make mention of what the Constitutional Court had to say as regards Ouderkraal supra, Cameron J stated in MEC for Health,Eastern Cape and Another supra at paras [101) and [103]:

"[101] The essential basis of Ouderkraal was that invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aelde by proper proc8S8. The court expressed it thus:

'For those reasons it is clear, in our view, that the Administrator's permission was unlawful and Invalid at the outset ...But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. la the permission that was granted by the Administrator simply to be disregarded as if It had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator's approval and all Its consequences merely because It believed that they were Invalid provided that Its belief was correct? In our view, it was not. Until the Administrator's approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modem State would be considerably compromised if ail administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt It is for this reason that our law has always recognised that even an unlawful administrative act la capable of producing legally valid consequences for so long as the unlawful act is not set aside.'

[103] The fundamental notion - that official conduct that is vulnerable to challenge may have legal consequences and may not be ignored until properly set aside - springs deeply from the rule of law. The courts alone, and not public officials, are the arbiters of legality. As Khampepe J stated in We/kom­ '(the} rule of law does not permit an organ of state to reach what may tum out to be a correct outcome by any means. On the contrary, the rule of law obliges an organ of state to use the correct legal process.' For a public official to ignore irregular administrative action on the basis that it Is a nullity amounts to self-help...” [My emphasis]

[28] The applicant argues that it is not for the applicant to show why the procedure adopted or that should have been adopted should be reviewed or not. Further, that it lies with the first respondent to seek the review of a decision, if it is of the opinion that the prescribed jurisdictional facts or preconditions were not adhered to. In casu the first respondent knew as far back as 2013 of the transfer of the property to the applicant and to date has taken no steps to review the decision which it takes issue with. In the face of the fact the transfer was in fact effected in 2008.

[29] In light of the above the decision, correct or incorrect, stands with force and effect until set aside. I must stress that the issue pertaining to review of the decision for non­compliance with the prescripts of section 79(18) is not before me. The issue before me is that of the eviction of the first respondent.

[30] However, the enquiry does not end here. As I stated under the paragraph dealing with the point in limine, the matter before me is one of law. Does the applicant possess the right to evict the first respondent? This right, in my view, is intricately linked to the review proceedings, I thus conclude that these current proceedings be stayed pending the outcome of the review proceeding to be instituted by the first respondent. This would alleviate the creation of a situation of irrationality, unpredictability and uncertainty.

[31] I am mindful of the Constitutional Court directive in MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd supra at para [40] which makes mention that if the validity of an administrative decision is one of the issues before the court, that court is duty bound to consider that issue and make the necessary pronouncement.

[32] In casu though it is so that the validity of the decision to transfer the property is before me. However, on the papers before me there is insufficient information for me to make an informed decision and pronouncement. In addition, though the second respondent, the

organ of the state and decision maker, filed a notice to oppose, their version as regards the decision is not before this court as they failed to file any other papers.

[33] In these circumstances, I am fortified that it is prudent and necessary to have the second respondent's version in considering the aspect of review. It was emphasised in argument by the first respondent that the documents attached were all that they could find and as the second respondent is the author of the process and key player they are in a better position to assist the court in the review proceedings to reach an informed pronouncement.

[34] In the circumstances, there is no necessity and relevance to consider the other defences raised by the first respondent. I must point out though, that there is a decision that exists and the parties are bound by same until reviewed and set aside. In light of the aforesaid the first respondent cannot be utilising the property for free and therefore must pay rental to the owner of the property for the use thereof until the review is adjudicated.

[35] Consequently the following order is made:

[a] The eviction application is suspended pending review proceedings to be instituted within 60 days in the High Court for a declaration on the validity of the transfer of ownership of ERF. 652, ASIATIC BAZAAR EXT 1 GAUTENG PROVINCE to applicant on 2 October 2008;

[b] Pending the adjudication of the review application the applicant is ordered not to interfere with the first respondent's occupation of the property;

[c] The first respondent is ordered to pay rental to the applicant who is the current owner of the property until such time that the review application is adjudicated;

[d] The costs of this application are reserved.

____

W Hughes

Judge of the High Court Gauteng, Pretoria

Appearances:

For the Applicant: CJ S Kock

Instructed by: Vezl & De Seer Incorporated

For the Defendant: Adv. E Prinsloo

Instructed by: Wllsenach Van Wyk Goosen & Bekker

Date heard: 31July 2017

Date delivered: 18 August 2017