Mtila-Dikolomela v Century Apartments CC and Another (2692/2010) [2015] ZANWHC 43 (2 July 2015)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST DIVISION, MAHIKENG)

REPORTABLE

CASE NO.: 2692/2010

In the matter between:

NOBANTU LYDIA MTILA-DIKOLOMELA

PLAINTIFF

and

CENTURY APARTMENTS CC

1ST DEFENDANT

THE SHERIFF OF THE HIGH COURT (MR MONARE) 2ND DEFENDANT

DATE OFHEARING:

18 JUNE 2015

DATE OF JUDGMENT: 2 JULY 2015

LANDMAN J

JUDGMENT

LANDMAN J:

Introduction

[1] Mrs Dikolomela-Mtila, the plaintiff, experienced a nightmare in real life. She was evicted in her absence from her flat without a court order and her property and possessions were removed and have disappeared. The plaintiff sued Century Apartments CC, the first defendant (the ‘Landlord’) for damages caused by her unlawful eviction from the flat that she was leasing including damages for defamation and the invasion of her privacy. It has, however, been possible to avoid a full trial by hearing evidence on a limited issue.

[2] After the evidence was led and after counsel had addressed me I reserved judgment. A few days later, and without an application to do so, the plaintiff’s legal representatives filed what is termed ‘supplementary heads of argument’. The defendant, with some justification objected to this process but filed its own heads of argument. It would assist in bringing finality should I take these heads of argument into account in arriving at my decision and therefore I do so.

The background

[3] The plaintiff leased flat [....], [....] Heights, Mafikeng from the North West Housing Corporation and subsequently from the Landlord. The Landlord alleged that she was in arrears with her rent and served an application under case number 1423/2008 for her eviction and the eviction of 112 other residents of those flats. She opposed the application. The other respondents i.e residents, did not oppose the application and an order by default was taken against them for their eviction. The plaintiff was away when she was evicted from the flat and her property and possessions were carried out of her flat and have not been recovered.

[4] The plaintiff launched an application for the restoration of her right of occupation under case number 2812/2008. The Landlord’s

local attorney had alleged that the plaintiff was evicted in terms of a court order because she was in arears with her rental. This application served before me and I granted the order. It is common cause, on the pleadings, that the Landlord failed to comply with this order granted on 27 March 2009.

[5] Subsequently the defendant’s application under case number 1432/2008 for the plaintiff’s eviction also served before me. I concluded that the lease had not been terminated and I dismissed the application.

[6] The plaintiff then issued summons against Century Apartments CC under case number 2692/2010, which currently serves before me, for damages caused by the eviction i.e for the replacement of her lost property and possessions, a claim for defamation and invasion of her privacy. The plaintiff alleges in her particulars of claim that the Sheriff and/or the Landlord is responsible for the eviction and her damages.

[7] The Landlord filed a special plea and pleaded over. The special plea is to the effect that the matter could not proceed until the Sheriff was joined. The plaintiff then successfully applied to join the Sheriff of this High Court, Mr Monare, as the second defendant. The plaintiff did not amend its particulars of claim and did not seek judgment against the sherriff. The result is that Mr Monare filed no papers and did not participate in the proceedings. He was present in court having been subpoenaed by the Landlord to be in attendance.

[8] In its plea to paragraph 4 of the particulars, the Landlord admitted that the sheriff had evicted the occupants of flat 105B [....] Heights (the plaintiff’s flat) but denied the remainder of the averments. Properly interpreted the Landlord:

(a) admits that the plaintiff was evicted but does not admit that it evicted the plaintiff;

(b) denied that the eviction was without a court order;

(c) denied that the occupation of the flat by the plaintiff was lawful;

(d) denied that the sheriff, its agent or employees were on duty and/or furthering the interests of the Landlord; and

(e) denied liability for the eviction.

[9] Counsel for the plaintiff, in the written argument, submits that the Landlord did not plead that it did not evict the plaintiff and hence the plaintiff did not prove that fact. This interpretation is erroneous. It does not take account of the shift in the Landlord stance from the one it adopted earlier.

Limited evidence

[10] When the matter was called, Mr Swart SC, who appeared for the Landlord, pursued the special plea on the grounds that although the plaintiff had joined Mr Monare, the Sheriff of this Court, the eviction was not conducted by Mr Monare but by an ad hoc Sheriff, Mr Makgale that the South African Board for Sheriffs had appointed for this purpose. Mr Swart SC also submitted that the Landlord had not instructed any sheriff to evict the plaintiff and that, contrary to the denial in the plea, the eviction of the plaintiff was not in terms of a court order.

[11] It was during Mr Dikolomela’s answer to Mr Swart’s address that I suggested to the parties that I should initially

decide a limited issue concerning the instruction to the sheriff as it could prove decisive. Both counsel agreed that evidence would be led and I would be called upon to decide the following question: Whether the first defendant (Landlord) instructed a sheriff to evict the plaintiff from her flat in [....] Heights and who in fact evicted the plaintiff?

[12] An eviction performed by a sheriff in terms of a court order, although it is at the instance of judgment creditor, is not performed

by the judgment creditor. And in the absence of any other factor a judgment creditor is not responsible for the actions of a sheriff. A party would be liable for the acts of a sheriff if it instructed a sheriff to evict a person without a court order and the sheriff did so. Thus the issue whether the Landlord instructed the sheriff to evict the plaintiff is important and its answer is decisive of the action.

Testimony

[13] Mr Monare and Mr Makgale, who had also subpoenaed by the Landlord, testified at the insistence of the plaintiff. The Landlord did not call witnesses.

[14] The court order authorizing the eviction of residents of [....] Heights was produced. It clearly does not authorize the eviction of the plaintiff. The order authorized the eviction of 1st to 51st and 53rd to 113th respondents. The plaintiff was the 52nd respondent.

[15] Subsequently the Landlord instructed the Sheriff of the High Court, Mr Monare, to execute the eviction order. For reasons, which are understandable given the volatile atmosphere surrounding the proposed eviction, Mr Monare was not available to conduct the eviction. He was also not willing to adhere to the Landlord’s suggestion that he engage the Security Company known as the ‘Red Ants’ to assist him in the proposed eviction. The result is that the Landlord approached the Board for Sheriffs which appointed Mr Makgale, of Rustenburg, on an ad hoc basis to fulfil this task. Mr Makgale contracted with the Red Ants to assist him in this large-scale eviction.

[16] Mr Makgale arrived at the flats on 29 October 2008. He was aware that the 52nd respondent was not to be evicted. He called out her name. There was no response. He says that there was confusion at the property as some of the numbers assigned to the flats were missing from the doors of the flats. He says he cannot say that he caused the 52nd respondent (plaintiff) to be evicted but he also readily concedes that he conducted the eviction and therefore cannot deny that she may have been evicted by his assistants. He confirmed that no representative of the Landlord nor its attorney was present at the eviction. The Landlord did not appoint the Red Ants to assist him. He did and he is responsible for their acts and omissions.

Submissions

Admissions

[17] Counsel submitted that at no stage during the earlier applications did the Landlord attempt to withdraw the admissions it made nor did it do so when it pleaded. It is contended that the Landlord has ignored the admissions without applying for to court for their withdrawal. This submission does not take cognizance of the fact that the earlier applications although they relate to this action have been finalized. Those admissions do not apply as admissions in this trial. Any such admission would need to be pleaded in and proven in the event that they were denied.

[18] Counsel also submitted that the Landlord is attempting to withdraw admissions made at the pre-trial conference. I am unable to discern from the minutes of the conference dated 14 May 2014 which admissions counsel has in mind. The admission recorded simply confirms the issues in dispute as recorded in the pleadings.

Res judicata

[19] After the evidence on the limited issues had been led and during argument Mr Dikolomela, who appeared on behalf of the plaintiff (his spouse), contended that the liability of the Landlord had been effectively decided by myself in the application for her restoration

(under case number 2812/2008) and the issue was res judicata. It could not be res judicata in the pure sense for the applications did not involve a judgment for the damages that the plaintiff claims form the Landlord. I assume that counsel rather has issue estoppel in mind. The requirements for issue estoppel has been recently restated in Pratt v Firstrand Bank Limited (696/13) [2014] ZASCA 110 (11 September 2014) at para 8 where Mpati P said:

‘It is well to state at this stage that as regards a plea of res judicata the enquiry is not whether the judgment, which is relied upon as having decided an issue that has been raised in subsequent proceedings, is right or wrong, but simply whether there is a judgment. In Yellow Star Properties 1020 (Pty) Ltd v MEC, Department of Development Planning and Local Government, Gauteng 2009 (3) SA 577 (SCA) it was said that the “underlying ratio of the exceptio rei judicatae vel litis finitae is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other on the same cause of action should not be permitted”. The exceptio may therefore be raised successfully by one party in a later suit against another who is demanding the same relief on the same cause of action, or where the ‘same issue’ had been adjudicated upon, which really comes to the same thing.’

[20] In his written argument counsel for the plaintiff contends that the principles of res judicata and estoppel are applicable in this matter as the court has already dealt with the aspect as to who evicted the plaintiff. He contends

that the Landlord is estopped from reneging on the admissions it made in earlier applications which are not properly raised in the pleadings. He also submits correctly that this court cannot reverse the earlier judgment.

[21] But the plaintiff faces the problem that the matter before me is an action and that it does not follow automatically that a stance, assumption or an admission or judgment made in previous proceedings will without further ado form part of the material on which this action must be decided. The plaintiff has not pleaded by, way of a replication, estoppel based on the res judicata. See Leeuwinplase (Pty) Ltd t/a Leeuwim Plase v De Vier Winden Property Holdings (Pty) Ltd (unreported judgment of the WCHC, Case Number 6796/12) at para 14, where it is said:

‘Res judicata must ordinarily be specifically pleaded and be supported by evidence of the previous judgment. I can see no reason why this should not hold true for issue estoppel, which is a rule of res judicata, as estoppel is not odious, but must be applied so as to work justice and not injustice, which is the overriding consideration when the principle of issue estoppel is applied. It would in the circumstances of the present matter be manifestly unjust to apply the principles of issue estoppel.’

[22] Had the plaintiff pleaded res judicata or estoppel and had the defendant denied this (which would be in accordance with its plea) the plaintiff would have been obliged to lead evidence of those admissions.

[23] In any event I found in the restoration application that the plaintiff had been unlawfully evicted. This finding stood in the subsequent application under case number 1423/2008 and still stands. In the application brought by the Landlord under case number 1423/2008, I found that the lease had not been lawfully terminated. The effect of my judgment is that the eviction was unlawful and that the Landlord was liable to restore possession of the flat to the plaintiff. It was not necessary to decide nor was it decided that the Landlord had evicted the plaintiff nor that the Landlord was liable for the eviction although this was the underlying supposition. In paragraph 12 of my judgment delivered in case 1423/08 I recorded the following: ‘My judgment decided no more than that she was evicted without a court order.’ It was unnecessary to decide that the Landlord was liable for the eviction because the Landlord’s local attorney had filed an affidavit which proceeded from the premise that the Landlord had cause to evict the plaintiff and had done so following due process.

[24] At most the issue estoppel would rest upon the assumption, in actual fact a mutual error by the parties including the Landlord, that the Landlord had caused the sheriff to evict her but in terms of a court order. Now the plaintiff would have the defendant estopped from relying on the true facts, namely that the sheriff when he acted, acted without a court order as regards her.

[25] Brand JA observed in Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another (243/11) [2012] ZASCA 28; 2014 (5) SA 297 (SCA) (28 March 2012) that:

‘[23] In our common law the requirements for res iudicata are threefold: (a) same parties, (b) same cause of action, (c) same relief. The recognition of what has become known as issue estoppel

did not dispense with this threefold requirement. But our courts have come to realise that rigid adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose of res iudicata. That purpose, so it has been stated, is to prevent the repetition of law suits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue (see eg Evins v Shield Insurance Co Ltd 1980 (2) SA 815 (A) at 835G). Issue estoppel therefore allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties.

[24] At the same time, however, our courts have realised that relaxation of the strict requirements of res judicata in issue estoppel situations creates the potential of causing inequity and unfairness that would not arise upon application of all three requirements. That potential is explained by Lord Reid in Carl-Zeiss-Stiftung v Rayner and Keeler Ltd (No 2) [1966] 2 All ER 536 (HL) at 554G-H when he said:

“The difficulty which I see about issue estoppel is a practical one. Suppose the first case is one of trifling importance but it involves for one party proof of facts which would be expensive and troublesome; and that party can see the possibility that the same point may arise if his opponent later raises a much more important claim. What is he to do? The second case may never be brought. Must he go to great trouble and expense to forestall a possible plea of issue estoppel if the second case is brought?”

[25] One can also imagine a situation where a purchaser seeks confirmation of his or her purported cancellation of the sale in motion

proceedings. The seller may decide that the expensive and time consuming game is not worth the candle and thus decide not to oppose.

But if the purchaser were then to sue for substantial damages the application of issue estoppel in the second case may cause clear

inequity. The same situation will not arise in the case where all the requirements of res judicata are satisfied. In that event the relief sought in both cases will be the same. The seller will have to decide whether to speak up in the first case or hold his or her peace in the second.

[26] Hence, our courts have been at pains to point out the potential inequity of the application of issue estoppel in particular

circumstances. But the circumstances in which issue estoppel may conceivably arise are so varied that its application cannot be

governed by fixed principles or even by guidelines. All this court could therefore do was to repeatedly sound the warning that the application of issue estoppel should be considered on a case-by-case basis and that deviation from the threefold requirements of res judicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings (see eg Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 676B-E; Smith v Porritt supra 2008 (6) SA 303 (SCA) para 10. That, I believe, is also consistent with the guarantee of a fair hearing in s 34 of our Constitution.’

[26] Even if issue estoppel had been raised it would not in my view be fair to hold the parties to a common error.

Absence of a third party notice

[27] It was also contended that as the Landlord did not issue a third party notice on the ad hoc sheriff well knowing that ‘it will impute the eviction on the ad hoc Sheriff … shows that the [Landlord] intended to accept liability relating to the eviction.’ The dispute between the parties is to be tried on the basis of the pleadings and the Landlord has denied liability for the eviction. The Landlord has not on the pleadings admitted that it evicted the plaintiff. It is for the plaintiff to prove this. The absence of a third party notice does not assist the plaintiff. The inference it seeks to make cannot be sustained.

Responsibility for the Red Ants

[28] The plaintiff submits in its written submissions that the Red Ants were engaged by the Landlord to physically evict the plaintiff. In the first place the submission is contradicted by the evidence of Mr Makgale. He contracted the Red Ants to assist him in evicting the respondents against whom a court order had been obtained. It is the sheriff that executes a court order and it is the sheriff that contracts others eg. the Red Ants to assist him or her. Even if the judgment creditor foots the bill in the end for the sheriff’s

assistants, the eviction, in terms of a court order, is not performed by the judgment creditor.

[29] In this instance the eviction of the plaintiff was effected without a court order. There is no evidence that the Landlord contracted the Sheriff to evict the plaintiff or that it contracted the Red Ants. A letter of instruction addressed by the Landlord’s attorneys to the sheriff was not canvassed in evidence. In any event the letter clearly instructs the Sheriff to execute the court order and does not refer to the plaintiff. The sheriff understood this to be the case. The sheriff states unequivocally that he had no instructions from the Landlord to evict the plaintiff.

[30] Counsel submits that it has been ambushed by the Landlord. That may be an apt description of the plaintiff’s predicament but it does not assist the plaintiff. She has not proven the liability of the Landlord for her damages.

Question answered

[31] In summary the answers to the questions, whether the first defendant (Landlord) instructed a sheriff to evict the plaintiff from her flat in Gothalo Heights and who in fact evicted the plaintiff is that:

(a) the Landlord did not instruct either the Sheriff Mr Monare or the ad hoc sheriff Mr Makgale to evict the plaintiff from her flat.

(b) the plaintiff was evicted from her flat without a court order probably by the Red Ants for whom Mr Mokgale is responsible.

[32] It follows that the application for absolution from the instance ought to be granted.

Postponement and joinder of Mr Makgale

[33] Counsel for the appellant submits that if I should find against the plaintiff the plaintiff would need to join Mr Makgale in this action. In making this submission it is contended that a claim against Mr Makgale has not prescribed. I cannot decide this aspect in advance nor may I decide it until and if it is raised by Mr Makgale. Joinder would, in view of the conclusion which I have reached, be futile because of my order of absolution from the instance. There is no live lis to which Mr Makgale can be joined.

[34] Counsel for the appellant submitted that the Landlord has an interest in this matter irrespective of a finding that I may make relating to its involvement in the eviction of the plaintiff based on earlier order restoring the plaintiff’s occupation of the flat. The Landlord has no interest in prolonging the matter. It would be improper to allow the further escalation of costs vis-á-vis the Landlord when a case for absolution from the instance has been made out.

[35] I would have granted the postponement had there been any doubt as to the liability of the Landlord for damages. But here there is none. It follows that I decline to accede to an application for a postponement in order for the plaintiff to apply for the joinder of Mr Makgale.

Costs

[36] This brings me to the question of costs.

[37] The Landlord submitted that costs should be awarded to it on the basis that costs follow the result. In my view the Landlord bears a large amount of responsibility for the abortive costs. The application to join Mr Monare was delivered to the Landlord on 3 March 2011. The Landlord knew that the plaintiff was joining the wrong Sheriff but remained silent until more than four years later when it took the point that Mr Makgale had not been joined in these proceedings.

[38] Although the plaintiff’s legal representatives were seriously remiss in preparing for trial, the non-disclosure of the truth in the circumstances of this case which the Landlord knew would lead to wasted costs, even although lawful is reprehensible. The Landlord has not tendered any explanation for this approach. I do not intend awarding the Landlord any costs.

[39] Counsel for the plaintiff submitted that even if I found against him, the Landlord should bear the costs of suit. He submitted that the plaintiff had been ambushed and had no inkling until the morning of the trial that she had joined the wrong Sheriff. It is understandable that the plaintiff would have languished under the impression that the Sheriff concerned was Mr Monare as the eviction took place within his area of responsibility. It is exceptional for an ad hoc appointment of a Sheriff to be made.

[40] Mr Monare did not disclose that he was not the Sheriff that evicted the plaintiff. He says that he was under no legal obligation to do so. This hardly redounds to his credit. The Landlord’s plea does not reveal this fact but it was entitled to merely deny liability.

[41] The plaintiff’s legal representatives could have discovered that Mr Makgale and not Mr Monare was the Sheriff who had conducted the eviction had they inspected the return of service or the documents discovered by the Landlord in terms of a discovery

affidavit delivered on 5 May 2015. The documents were only inspected during argument.

[42] I do not intend awarding costs to the plaintiff. The plaintiff has not succeeded. It sued the wrong party. Justice will be done by not awarding the Landlord its costs but, although it is permissible in the exercise of my discretion to award costs to the losing party, this is not warranted in this case as it was within the plaintiff’s ability to ascertain the true issues and prepare for them.

Order

[43] In the premises I make the following order:

1. An order for absolution from the instance is granted.

2. There is no order as regards costs.

AA Landman

Judge of the High Court

APEARANCES

For the plaintiff:

Adv T L Dikolomela instructed by K J Ketse Attorneys

For the first defendant: Adv A J Swart SC instructed by Allen and Associates/ DC Kruger Attorneys

For the second defendant: none